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Water
WATER BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The Water Bill 2000 (the Bill) has three main objectives. These are to
establish a:
· Sustainable management framework for the planning allocation
and use of water and other resources;
· Regulatory framework for service providers covering asset
management, customer standards, and dam safety; and
· Governance regime for statutory authorities that provide water
services.
In achieving these objectives the Bill will replace a number of existing
Acts including the Water Resources Act 1989 (the Act) and the Gladstone
Area Water Board Act 1984. The Bill will also consequentially amend the
Sewerage and Water Supply Act 1949 and the Petroleum Act 1923 and a
number of other Acts. In addition, the Bill provides for transitional
arrangements in relation to the proposed corporatisation of State Water
Projects.1
Why the Proposed Legislation is Necessary
Much of the legislation regulating the water industry in Queensland
predates the significant changes and institutional reform now occurring.
The main piece of legislation regulating the industry is the Act. It is the
primary piece of legislation under which water is allocated, and irrigation
schemes have been developed and are operated. The Act has a number of
deficiencies including:
1 State Water Projects is a commercialised business unit within the Department of
Natural resources and was nominated as a candidate government owned
corporation under the Government Owned Corporations Amendment Regulation
(No.1) 2000 on 26 May 2000.
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· there is no power to explicitly consider water for the environment;
· there is an incremental licensing system which has the potential to
threaten the security of existing entitlement holders;
· water is tied to land under current licensing arrangements and this
can impose some restrictions on agricultural expansion in that
new land must often be purchased to acquire more water;
· water allocations are tied to licences for works. As part of the
implementation of the Integrated Planning Act 1997 there is a
need to separate the water allocation decision from the
development approval associated with the construction of works;
· there is no capacity under the current legislation for the sharing of
overland flow. This is a significant issue in some parts of the
state where the taking of overland flow before it enters the
watercourse is affecting the amount of water available to the
environment and the water available to existing entitlement
holders;
· water resource allocations can be made under various Acts. For
example, under the Petroleum Act 1923, a lessee has certain
entitlements to take water outside the provisions of the Act.
· the chief executive of the Department of Natural Resources (the
Department) has varying and potentially conflicting roles as
resource manager, infrastructure developer, and water service
provider.
Urban water supply is regulated (in conjunction with certain powers in
the Local Government Act 1993) through the Sewerage and Water Supply
Act 1949 and Standard Laws and the Metropolitan Water Supply and
Sewerage Act 1909 (in respect to the Brisbane City Council's operations).
These Acts primarily relate to the provision of water supply, sewerage and
stormwater drainage, in urban and town areas. The Bill incorporates
relevant provisions from these Acts, with a view to streamlining legislation
for the water industry, and amends these Acts to make them consistent with
the Integrated Planning Act 1997.
As service providers begin to commercialise their operations, it is
possible that some trade offs may occur with respect to customer service
standards, and the way in which the assets are managed. It is necessary
therefore to ensure that there is a regulatory regime in place to ensure that
standards of service and long term asset management are not compromised
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in the pursuit of commercial objectives.
Currently, the operations of statutory authorities that supply water are
regulated through Acts such as the Gladstone Area Water Board Act 1984
and part 10 of the Act under which rural water and drainage boards are
constituted. In addition, the South East Queensland Water Board (Reform
Facilitation) Act 1999 carried into the Act a number of provisions relating to
the operation of the newly established South East Queensland Water
Corporation. The Acts under which boards are currently constituted include
a mix of resource management and governance arrangements. The
proposed Bill seeks to separate governance issues from resource regulation
by:
· bringing all statutory authorities that provide water under a single
governance structure set out in chapter 4 of the Bill; and
· applying the resource allocation and regulatory arrangements in
the Bill to all service providers equally, regardless of ownership.
Means of Achieving the Objectives
The objectives of the legislation are achieved through chapters 2, 3 and 4
in the Bill.
Chapter 2 of the Bill deals with the resource regulation issues. It
provides for a statutory based water resource planning process to assess, at
a strategic level, the water required to meet environmental needs and water
available for consumptive use. It then provides for the development of
operational plans (known as resource operations plans) to implement the
objectives established under each water resource plan. As an outcome of
these operational plans, water licences that exist under the Act may be
converted to "water allocations" that are separate from land and tradeable
within rules set out in the plan. The Bill also provides for the creation of a
register to record water allocations, and any dealings for, and interests in
water allocations.
Chapter 2 also provides for the regulation of water use to promote
sustainable use of water with regard to the effects of water use on land and
water resources. The chapter provides for water use plans that set standards
for water use in a district. It also provides for land and water management
plans for individual properties. The intention is that where possible water
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use should be controlled through the district standards established under
water use plans. The current requirement that a land and water management
plan be approved where water is newly used for irrigation in irrigation areas
is continued. However, the intention is to increasingly rely on water use
plans to target the lands within the water use plan area that are at high risk of
degradation, and require land and water management plans in those parts
only, for existing as well as new irrigation.
Chapter 2 also continues some provisions that existed in the Act relating
to catchment management, protecting the physical integrity of watercourses
and quarry materials. These provisions do not represent a change from the
current policy in the Act and will be the subject of subsequent review.
However, for the sake of ensuring all matters dealing with water resource
management are in the one primary piece of legislation, these have been
incorporated into chapter 2 of the Bill.
Chapter 3 deals with asset management and customer service standards
for water service providers. It establishes a registration system for all
service providers, which brings with it a requirement that the providers have
in place strategic asset management plans and customer service standards
that are regularly reported upon. It also provides a means for ensuring the
safety of hazardous dams through a requirement that failure impact
assessments are undertaken as part of development approvals. Chapter 3
also makes amendments to those parts of the Sewerage and Water Supply
Act 1949 that deal with the provision of water supply and sewerage services
in urban areas. Other parts of that Act and standard laws that are concerned
with "on site" plumbing and drainage issues will remain, and continue to be
administered by the Department of Communications, Local Government,
Information, Planning and Sport.
Chapter 4 of the Bill deals with governance arrangements for statutory
authorities that provide water services, including rural water boards
currently constituted under part 10 of the Act, and the Gladstone Water
Board that is constituted under its own Act.
Estimated cost of implementation for Government
Implementation of the Bill will require a mix of reprioritisation of
existing functions and activities, and new initiatives.
An additional $2M funding has been secured for implementation
activities for the first year following commencement of the Bill. These
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funds are required for:
· development of resource operations plans in those areas where
water resource plans have been finalised, and associated
monitoring activities;
· staff training and information sessions for stakeholders will also
be a key element of administrative costs in the first year; and
· support for the Local Government Association of Queensland in
assisting local governments to comply with matters dealt with in
chapters 2 and 3 of the Bill.
A review of the financial implications of the Bill will take place within
12 months of commencement. Other implementation issues to be
considered include:
· establishment of the water allocation register contemplated under
chapter 2 of the Bill;
· interim resource operations licences for relevant local
governments and water boards; and
· matters relating to compliance and enforcement, and review and
appeals (including the establishment of referral panels where
necessary)
Consistency with Fundamental Legislative Principles
Aspects of the Bill that raise possible breaches of fundamental legislative
principles are outlined below.
CHAPTER 2
Qualification of entitlements through administrative notice
Under Clause 42 the Minister may issue a moratorium notice to direct
that applications for taking water will not be accepted or dealt with until a
water resource plan is approved or the notice withdrawn. This is necessary
to allow a stock-take to be taken on water in the plan area. It is justified
because:
· there is a provision for a review if the notice extends beyond one
year;
· the clause limits matters that can be affected by the notice;
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· it enables a plan to take account of the rights of all existing
entitlements holders; and
· the decision to publish would be reviewable under the Judicial
Review Act 1991. Moratoriums will protect the environment
while the planning process is carried out.
Appeals against conversions of water licences to water allocations
Chapter 2, part 3 of the Bill provides for the preparation of water resource
plans. These water resource plans are subordinate legislation. The water
resource plans are implemented through resource operations plans made
under chapter 2, part 4. The Bill provides a 2 stage process for conversion
of existing water licences to water allocations:
· Water resource plan: this is the strategic plan for an area. They
are essentially the water allocation and management plans that are
currently underway throughout the state. Under the Bill these
plans are subordinate legislation.
· Resource operations plan: this is the implementation plan that
gives effect to the water resource plan. The Bill provides that
these plans must include details of conversions of people's
existing water licences to water allocations that are separate to land
and are tradeable. Details of the proposed conversions are made
publicly available for comment before finalisation of the resource
operations plan. On the day the plan is approved by the Governor
in Council, water allocations are issued to licencees in the plan
area. The Exposure Draft Bill did not include any appeal against
conversions of the water licence to a water allocation. The reason
for this is that the water resource plan, which is subordinate
legalisation, may specify a total volume of water available in an
area, with resource operations plan essentially concerned with
how to share the amount available. To allow an appeal against the
proposed conversions would mean that every user in the resource
operations plan area may potentially be a party to an appeal.
To deal with this issue, the Bill provides that:
· the water resource plan (that is, the strategic document) may
include criteria for adjusting existing water entitlements to achieve
the plan outcomes;
· the notification of the preparation of the resource operations plan,
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and the draft resource operations plan, is provided for all licencees
affected by the plan to comment;
· the chief executive may constitute a referral panel to hear
submissions on the draft plan and make recommendations to the
chief executive on the proposed conversions; and
· appeals can be made to the Land Court (within the constraints of
the water resource plan) under allocations consistent with the
resource operations plan.
CHAPTER 3
Flood mitigation--storages and approved manuals
Clause 500 provides that an owner of a flood mitigation dam shall not be
civilly liable for actions taken or omissions made by the owner honestly and
without negligence in operating a dam in accordance with approved
procedures. This carries on a provision that existed under the South East
Queensland Water Board Act 1979. Essentially the provision requires that
the operator of the approved flood management storage must have and
comply with Ministerial approved manuals as to how the storage is
operated. Where releases from the storage may result in some damage
downstream (for example, damage to a bridge) the operator is not liable.
The provisions for the storage as nominated in the schedule to the Bill are
not matters that the service providers undertake as part of their normal
commercial operations. Rather, they are things the operator undertakes to
fulfil a broader public purpose, for example, control releases and undertake
certain reporting and coordinating activities with local governments about
release from the storage.
The Bill provides that if the service provider operates the storage
according to the approved manual, and acts honestly and without
negligence, the service provider will not be liable. Liability will attach to the
State instead.
Exemption from small providers
Clauses 434 provides that a small service provider may apply to the
regulator for an exemption from complying with chapter 3, part 3, divisions
1, 2 or 3, which relate to strategic asset management plans, audit reports,
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customer service standards and annual reports. These provisions are
justified on the basis that:
(a) the discretion to exempt is limited to cases where the regulator is
satisfied it is not reasonably practicable for the service provider to
comply because costs outweigh benefits to customers;
(b) the exemption is gazetted;
(c) the power of exemption allows the tailoring of requirements to
ensure the practical application of regulatory requirements; and
(d) without this provision regulatory obligations may be excessive for
some providers.
A similar power exists in section 153 of the Transport Operations
(Road Use Management) Act 1995.
Power for authorised persons to enter places for restricted purposes
Clauses 381 and 384 allow an authorised employee or contractor of a
service provider to enter places to disconnect unauthorised connections to
the provider's infrastructure and for other restricted purposes, for example,
maintaining and protecting their infrastructure. This is justified on the basis
that:
(a) the right to enter is necessary for service providers to carry on
their business, and ensure lawful use of water;
(b) prior notice is given to the person making the unauthorised
connection to show cause why the disconnection should not
happen;
(c) a person in control of the place at the time of entry, is also given
notice.
(d) the right is only a right to enter to disconnect the connection, and
does not include the right to enter a dwelling house; and
(e) the right is modelled on the right electricity providers currently
have.
Clause 381 allows a service provider to enter land to undertake the
rectification of equipment not rectified by the customer on receipt of a
notice.
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Clause 384 enables registered service providers to enter onto private land
for the purpose of maintaining and protecting their infrastructure. This
power is only exercisable after the giving of 14 days notice, except where
urgent action is needed, when notice is given at the time of entry or if prior
consent is obtained. These powers are essential for service providers to be
able to carry out their business. The right to enter relates only to the service
provider's infrastructure and does not apply to entry of a dwelling house.
Delegation of regulator's powers
Clause 520 provides for the making of a regulation that a power of the
chief executive as regulator under the Bill may be delegated or not delegated.
The power to delegate in the regulation is limited to a particular power and
particular person. As it would not be possible for the chief executive to
exercise all powers personally, it is appropriate that provision be made for
delegation.
CHAPTER 4
Removal of a protection against self-incrimination
Clause 617(13) removes the right of a director of a water authority to be
excused from answering a question put in an examination on the ground
that the answer might tend to incriminate the person or make the person
liable to a penalty. Under subclause (15) the answer is not admissible in
evidence in criminal proceedings or proceedings for the imposition of a
penalty, other than a proceeding for an offence against that clause or for
falsity of the answer.
This is justified on the basis that:
(a) the examination is conducted by a judge of the Supreme or
District Court;
(b) subclause (14) prevents the answer being used in most criminal
proceedings;
(c) the procedure is limited to where the Attorney-General considers
a person may have been guilty of fraud, negligence etc or the
person may be capable of giving information in relation to affairs;
and
(d) this is a necessary tool to elicit the facts on which further
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investigations may proceed.
False or misleading information or documents
Clause 619(2)(b) requires that an officer of a water authority not omit
from a statement concerning the authority's affairs made to another officer
or the Minister anything without which the statement is to the officer's
knowledge misleading in a material particular. It is necessary and
appropriate that an agent of a water authority disclose all relevant
information in such circumstances, since otherwise the authority or the
Minister responsible for the authority may be denied information necessary
to manage the affairs of the authority. Further the information is required to
be supplied only to the authority's officer or the Minister, and not third
parties.
CHAPTER 5
Investigation matters
Clause 746, 747 and 748 gives authorised officers a power to enter land
to monitor compliance with the Bill, to collect information (relating to water,
soil or monitoring equipment) and to ascertain or confirm the unauthorised
taking of, interfering with or use of water or other resources (eg quarry
materials) and unauthorised drilling of water bores.
This is justified on the basis that:
(a) the power to enter is limited to places that are not dwelling
houses;
(b) the power is largely limited to the particular purposes referred to
above, which are all purposes necessary for sustainable
management and efficient use of water;
(c) the State's water resource is located on or under a landowners
land, or in an adjacent watercourse to which the State gives the
riparian landowner trespass rights. The only way to monitor
water, monitor compliance with authorised activity or investigate
unauthorised activity is to enter land. Failure to act immediately
could result in damage to the environment or damage to the water
supply of others including deprivation of domestic water supplies.
(d) if the entering is for a different purpose, the occupier must
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consent, the place must be a public place, entry must be by
warrant, or the place must be open as a place of business; and
(e) the powers of entry must be exercised at a reasonable time (other
than where acting on a warrant, with consent or where there is a
reason to believe that unauthorised taking interference or use is
occurring).
The power in clause 748 relating to unauthorised drilling, taking
interference or use is able to be exercised at any time and without warrant,
consent or prior notice, as in practice such activities, particularly in respect
of water, often occur in remote areas and at night. Often the occupier of the
property may not be easily locatable, and any delay, prior warning of entry,
or need to locate the owner would cause the loss of resources and evidence.
For example degradation of vegetation or excavation in a riverine area may
have serious ramifications for water quality and management in the area,
which may not be rectified by regrowth for 20-40 years.
Similar powers are to be found in chapter 4, part 2 of the Environmental
Protection Act 1994.
Consultation
The consultation process undertaken in developing the proposal for the
Water Bill 2000, began with the preparation of Draft Policy Papers in
December 1998.
At the commencement of this process, a Water Industry Peak
Consultation Committee (WIPCC) was established. The WIPCC members
include representatives from the Queensland Farmers Federation, Local
Government Association of Queensland, Queensland Irrigators Council,
Environmental Defenders Office, Queensland Conservation Council,
Australian Conservation Foundation, the Brisbane City Council,
CANEGROWERS, AgForce, Queensland Fruit and Vegetable Growers
and Cotton Australia.
Separate from the formal processes through the WIPCC, the Water
Reform Unit has undertaken consultation with a number of key groups
including the Infrastructure Association of Queensland, the Australian
Bankers Association, the Queensland Mining Council and major water
service providers such as the Urban Water Boards (Gladstone Area Water
Board and Mt Isa Water Board) and the South East Queensland Water
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Corporation. In addition there has been regular consultation with the
SUDAW consortium, which is proposing to build a major storage on the
Dawson River in Central Queensland.
Within government, consultation occurred through a Directors'-General
Steering Committee, and numerous other meetings with Departments that
had an interest.
Since December 1998, a number of consultative documents and
information and feedback sessions have been provided to industry
stakeholders on various components of the Bill.
In general, the purpose of the consultation process was to seek general
policy direction through the Draft Policy Paper process, but to concentrate
more on detailed feedback on substantial provisions contained in the
Exposure Draft Bills. It was seen as critical that the consultation process
focus on the Draft Bill so that stakeholders could focus on detailed
provisions. In addition to the formal policy documents and Draft Bills,
there were also information brochures prepared on specific elements. In
addition, at the request of the Local Government Association of
Queensland, a detailed summary document on the implications on all the
Bills for local government operations was prepared and circulated in
November 1999. This was provided to all local governments throughout
the State and a series of meetings was held at the time of its release to
inform local government views on the three bills that were coordinated
through the Local Government Association of Queensland at the end of
January 2000. Because of the local government elections in March 2000, an
extension of time for feedback on the Exposure Draft Bills was given to the
local governments until the end of May 2000.
Consultation on specific parts on the Bill was undertaken as follows:
Exposure Draft Water (Allocation and Management) Bill--December
1999
This Draft Bill forms the basis of chapter 2 in the Water Bill.
Consultation was undertaken on the proposed new water allocation and
management framework through the release of the Draft Policy Paper in
December 1998 and subsequently through the release of a Draft Bill in
December 1999. Approximately 4000 copies of the Draft Bill were
distributed to stakeholders during the consultation process and a number of
information sessions were held across the State in relation to the Draft Bill
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during February and March. This included 18 public meetings in regional
centres throughout the State, half-day meetings with regional organisations
of councils and local governments, and day workshops with regional staff
on implementation matters associated with the Bill. Meetings were also
held with other key groups (industrial, financial, mining and petroleum
industry).
Exposure Draft Water and Sewerage (Infrastructure and Service)
Bill--March 2000
This Draft Bill forms the basis of chapter 3 in the Water Bill.
Consultation was undertaken on the proposed regulatory framework
through the release of a Draft Policy Paper in April 1999, and subsequently
through the release of the Draft Bill in March 2000 which set out the
legislative framework for service provision in the Queensland water
industry.
Approximately 1000 copies of the Draft Bill were circulated to
stakeholders during the consultation process, and a number of information
sessions provided across the state during March and April 2000. The
consultation process on this Bill was focused on major service providers,
especially local governments.
Water (Statutory Authorities) Bill--March 2000
This Draft Bill forms the basis of chapter 4 in the Water Bill. A Draft
Policy Paper on proposed Government's arrangements for statutory water
authorities was released in April 1999 and information sessions were held
with rural water boards throughout the State. The provisions in this part
apply to existing rural water and drainage boards constituted under the Act.
Sessions were held with members of all boards throughout the state and
feedback was incorporated into a Draft Bill which was the subject of further
consultation during March and April. Approximately 1000 copies of the
Draft Bill was circulated to stakeholders during the consultation process.
Arrangements in Relation to the Gladstone Area Water Board
Chapter 4 of the Draft Bill also covers proposed arrangements for the
Gladstone Area Water Board (formerly constituted under the Gladstone and
Area Water Board Act 1984). There has been a consultation process
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between the Department, Treasury, the Board and the effected local
government and industrial customers of the board about institutional reform
that has been ongoing for a period of about 2 years. The Board's
establishment Act will be repealed and will come under the governance
arrangements contemplated in part 4 of the Water Bill.
CHAPTER 1--PRELIMINARY
Clause 1 provides the short title of the Bill as the Water Act 2000.
Clause 2 provides for when this Bill commences.
Subclause (1) provides for retrospective commencement of
amendments 18 and 19 of the Integrated Planning Act 1997 found in
schedule 2 (amendments about planning matters). These amendments
provide for the effect of the expiry of Commonwealth legislation on 30 June
2000. The provisions are made retrospective to that date.
Subclause (2) sets out the provisions of the Act that are to commence on
assent. They include the preliminary provisions in chapter 1, water planning
provisions in chapter 2 but only in relation to purpose provisions, water
rights, information collection and water resource plans, investigation,
enforcement and offences in chapter 5, except for specific offences under
chapters 2 and 3 as the relevant substantive provisions will not have
commenced, reviews and appeals under chapter 6, legal proceedings,
general provisions about watercourse declarations, records to be kept by the
registrar, public inspection of documents, protecting officials, delegations
and regulation making powers. Certain transitional provisions will also be
commenced on assent including most transitional provisions for allocation
and sustainable management and provisions that set out how certain
licensing decisions are to be made under the Water Resources Act 1989,
from the date of assent to commencement of the new licensing provisions
in chapter 2, part 6. Consequential amendments to some other Acts,
including the Water Resources Act 1989, will also commence on assent.
Subclause (3) provides that other provisions of this Bill are to commence
on a date to be fixed by proclamation.
Clause 3 provides for word definitions used in the Bill, which are shown
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in the Dictionary in schedule 4.
Clause 4 provides that all persons are bound by the Bill, including the
State, and to the extent of State legislative power, the Commonwealth and
other States. However, this provision does not apply to the operation of the
State Development and Public Works Organisation Act 1971 and the
powers of the coordinator-general under that Act. The coordinator-general
may raise or lower the level of the water in any body of water and take,
impound, divert or use water in any body of water for the purpose of or in
connection with undertaking authorised works. "Authorised works" are
works undertaken by the coordinator-general such as the construction of a
dam, that are approved by order in council upon recommendation of the
Governor in Council. Consequential amendments to the State Development
and Public Works Organisation Act 1971 are in schedule 3 of the Bill. The
consequential amendments place certain limits on the exercise of the
coordinator-general's power, for example, if a moratorium has been notified
the coordinator-general is bound by the moratorium. Also, consequential
amendments require the coordinator-general to consider certain criteria
when exercising powers under the State Development and Public Works
Organization Act 1971.
Clauses 5--9 not used.2
CHAPTER 2--ALLOCATION AND
MANAGEMENT
PART 1--PRELIMINARY
Clause 10(1) sets out the purpose of chapter 2. The purpose is to
promote sustainable management of water and other resources. Other
resources are defined as quarry materials and riverine vegetation.
Sustainable management recognises the needs of natural ecosystems as well
2 Because of the size and complexity of the Act some clause numbers have been
deliberately left blank at the end of each Part. If the Act is amended in the
future this will assist in making the amendments without the necessary of
renumbering the whole Act.
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as the need to improve planning confidence of water developers and users,
now and in the future.
Subclause (2) defines sustainable management. To advance sustainable
management each of the requirements of subclauses (2)(a) to (2)(c) must be
achieved to the greatest extent possible, recognising that in some cases there
will need to be a balancing of competing interests. Subclauses (2)(a)
to (2)(c) are equally important to sustainable management of water and
other resources.
Subclause (3) in promoting efficient use of water, the systems for the
planning, allocation and use of water should address the issues raised in
subclauses (3)(a) to (3)(d).
Clause 11 provides that the principles of ecologically sustainable
development set out in subclauses (a) to (d) are the same as the principles of
ecologically sustainable development in section 3A(a) to (d) of the
Environment Protection and Biodiversity Conservation Act 1999 (Cth.).
The principles in subclauses (e) and (f) are based on guiding principles
contained in Australia's National Strategy for Ecologically Sustainable
Development, December 1992.
Clause 12 provides that every function or power exercised by an entity
including the Minister, chief executive, a company and an unincorporated
organisation under the chapter about allocation and management must be
performed or exercised in a way that advances sustainable management of
water, quarry materials and riverine vegetation.
Clauses 13--18 not used. See footnote at end of chapter 1.
PART 2--WATER RIGHTS
Clause 19 vests the `use, flow and control' of all water in Queensland in
the State. Water is defined to include water in a watercourse, lake or spring
or underground water or overland flow water or water from any of those
sources collected in a dam. The definition of dam expressly excludes
rainwater tanks. This means that the State is empowered with the
responsibility for determining how water that flows, and is collected, in
Queensland is either extracted, or stored or diverted or interfered with, or
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allowed to flow. If water is taken, the State's power also extends to
managing how water may be used in Queensland. The `use, flow and
control' of water in Queensland was previously vested in the Crown under
section 3 of the Act.
Unlike the provision in Section 3 of the Act, it is not considered
necessary to say "subject to water entitlements made under the Bill". Once
an entitlement is granted, for example, to pump water into an off stream
storage, it is not intended that the vesting provisions require a second
authority to access that stored water.
Clause 20(1) provides for the exceptions to the general rule that for water
that is vested in the State, the State issues entitlements to take or interfere
with that water following a prescribed process. This makes it clear that a
person does not acquire, except under the authority of the Bill, an
entitlement to water.
Subclause (2) provides that a water entitlement is not required for the
taking of water in an emergency situation provided the taking is for a public
purpose or for fighting a fire that is destroying or threatening to destroy a
dwelling house. It is not intended that this clause apply to personal
emergencies such as crop failure due to drought conditions however, it
would cover bushfires as it is intended that a bushfire would constitute a
public purpose.
Subclause (3) establishes a statutory authority for the owners of land
abutting a watercourse, lake or spring to take water for watering stock or for
domestic purposes from certain water sources. The authority cannot be
diminished by a moratorium notice or water resource plan, although the
taking of water under this authority can be limited by a regulation under
subclause 7. Domestic purposes are defined to include irrigating a garden,
not exceeding .25 of a hectare provided the garden is for domestic use and
not sale, barter or exchange of goods produced in the garden. Watering
stock under this clause means watering stock of a number that in the
ordinary course of grazing would normally be depastured on the land.
"Depasture" is defined in the Macquarie dictionary as, "to consume the
produce (of land) as pasture". The statutory authority to take water for
stock watering relates to the taking of water for stock watering at the
material time. It does not include the taking of large quantities of water
using high capacity pumps for storage and use at a later time when water
might not be otherwise available. Such activity is to be subject to the grant
of a water entitlement.
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Subclause (4) provides a statutory authority for all landowners to take
overland flow water that flows over the land or that has been collected in a
dam for stock and domestic purposes. The authority cannot be diminished
by a moratorium or a water resource plan. Domestic purposes are defined
to include irrigating a garden, not exceeding .25 of a hectare provided the
garden is for domestic use and not sale, barter or exchange of goods
produced in the garden. Watering stock under this clause means watering
stock of a number that in the ordinary course of grazing would normally be
depastured on the land. "Depasture" is defined in the Macquarie dictionary
as, "to consume the produce (of land) as pasture". The statutory authority
to take water for stock watering relates to the taking of water for stock
watering at the material time. It does not include the taking of large
quantities of water using high capacity pumps for storage and use at a later
time when water might not be otherwise available. Such activity is to be
subject to the grant of a water entitlement.
Subclause (5) authorises any person to take water for the temporary
purposes of camping and watering stock while the stock are in the process
of being moved from one permanent location to another.
Subclause (6) establishes a statutory authority to take or interfere with
overland flow water and subartesian water for any purpose unless a
moratorium or water resource plan limits or in some other way restricts the
water that may be taken or interfered with. This means that although
overland flow and subartesian water vest in the State a person may take or
interfere with that water unless a moratorium or water resource plan
provides otherwise. For example, if a water resource plan provided that a
person needed a water licence to take or interfere with overland flow water
for irrigation purposes, then although a water licence would be needed for
such activity from the time the plan was approved, other activity such as the
construction of contour banks to prevent soil erosion could continue without
the need for a water licence.
Subclause (7) provides that a regulation may declare that if specified land
abutting a watercourse, lake or spring is subdivided after the making of the
regulation, the owners of such subdivided land will not have a statutory
authorisation to take water for domestic purposes, although they would have
an authorisation to take water for stock watering as provided in
subclause (3). The provision is necessary to enable prevention of the
proliferation of irrigated gardens on the fringe of urban areas. Such
development can have significant impacts on the availability of water for the
19
Water
environment and other water users.
Subclause (8) contains a definition of land for the purposes of
clause 20(3). It is intended that the statutory authorisation to take water
from a watercourse, lake or spring by an owner of land where the land
adjoins a watercourse, lake or spring, for stock and domestic purposes,
include all parcels or lots of land that are owned by the same owner of the
land directly adjoining the watercourse, lake or spring, provided they are
contiguous. The intention is to ensure grazing properties that include more
than one property description can be entitled under clause 20(3), to take
water for stock and domestic purposes for the whole of the property. If part
of the property is sold to a new owner, only the owner of the land that
directly adjoins a watercourse, lake or spring, and any of that owner's land
that is contiguous, is authorised to take stock and domestic water under
clause 20(3).
Clause 21 provides that the chief executive may prohibit the taking of
water under clauses 20(3) or 20(4) for watering a garden. The notice may
deal with either or both, restrictions to the time for watering, or the volume
of water (actual or estimated). It may also prohibit taking of water for
watering a garden. Contravention of the notice constitutes an offence that
may give rise to a maximum of 200 penalty units. The provision is
necessary to enable priority to be given to in-house domestic water needs
during times of drought.
Clause 22 gives the Minister the power to qualify all authorisations and
entitlements to take water under the Bill in times of an emergency where,
for example, there is an extraordinary shortage of water or toxic pollutants
in the water. The notice published under this clause has effect for a
maximum period of 21 days and cannot be renewed for a further period in
relation to the same emergency. If it is likely that the emergency will
continue for a period greater than 21 days, a regulation must be made under
clause 23.
Clause 23 gives the Minister the power to qualify all authorisations and
entitlements to take water under the Bill in times of an emergency where,
for example, there is an extraordinary shortage of water or toxic pollutants
in the water. The regulation made under this clause has effect for a
maximum period of 1 year.
Clause 24 carries over the current law on bed and banks from that
currently existing under the Act and provides that where a watercourse
20
Water
forms the boundary of land, the bed and banks of that part of the
watercourse are, and always have been, for example, notwithstanding the
provision of the Rights in Water and Water Conservation and Utilization
Act 1910 and the Water Act 1926, the property of the State. This applies if
the watercourse becomes a boundary to land before commencement of this
clause or becomes a boundary at a further date. It applies even if the same
person, whether before or after the commencement of the Bill has been or is
the owner of all land adjacent to the bed or banks of the watercourse or lake.
Subclause (3) carries over the current law for exercising rights in relation
to beds and banks. Even though the beds and banks are the property of the
State, owners of property adjoining the bed and banks of a watercourse or
lake may access the bed and banks adjoining their property, graze stock on
the bed and banks adjoining their property and bring actions against people
who trespass on the bed and banks adjoining their property. It is not
intended that the rights under subclause (3) prohibit the State in any way
from accessing, grazing stock or bringing actions for trespass on State
property.
Clauses 25--34 not used. See footnote at end of chapter 1.
PART 3--WATER PLANNING
Division 1--Preliminary
Clause 35 requires the Minister to plan for the allocation and
management of water. To do this the Minister may prepare water resource
plans where necessary. The chief executive is to measure and keep records
of water resources, and to use for planning purposes information collected
by others on the impacts of water management on natural ecosystems, and
the future water needs of the State. The chief executive is responsible for
coordinating relevant information collected by other departments and
agencies such as the agency responsible for administering the
Environmental Protection Act 1994 and the department responsible for
administering fisheries legislation. It also requires the chief executive to
plan for water use to minimise adverse impacts of water use on land and
water. To do this the chief executive may prepare water use plans where
21
Water
necessary, and prepare guidelines for the making of land and water
management plans for the carrying out of irrigation of crops on individual
properties.
Clause 36 empowers the chief executive to require all persons with an
authority to take or interfere with water under chapter 2, including water
entitlement holders, those persons authorised under clause 20 and interim
resource operations licence holders and resource operations licence holders,
to give information to the chief executive. The purpose for which the
information is collected must be consistent with advancing the purpose of
chapter 2, as set out in clause 10. The information requested must be
information that would reasonably be collected by the holder of the
particular authority to take or otherwise interfere with water. Examples
include, details of how water infrastructure is being operated and how water
allocations are being managed by a resource operations licence holder.
Clause 37 states that the chief executive must not disclose to someone
else, other than the Minister, any information provided by a person under
clause 36 that could be expected to adversely affect that person's
commercial activities. The Minister also must not disclose this information.
Division 2 --Water resource plans
Subdivision 1--Preparing and approving water resource plans
Clause 38 states that the Minister may prepare a water resource plan for
any part of Queensland. Only one water resource plan may have effect for
any particular part of Queensland at any time, except that there can be an
additional separate plan for artesian water and subartesian water and springs
connected to artesian water. A water resource plan may be prepared for any
purpose, including to:
· define the amount of water available for consumptive use and the
water required for natural ecosystems;
· provide a framework for the establishment of water allocations
through the conversion of water licences or other entitlements or
the granting of new water allocations;
· provide a framework for the allocation and management of water
22
Water
and management of water use, for example, to put limits on the
issue of water licences;
· identify strategies and priorities for meeting future water
requirements, for example, by issuing further water entitlements
or through the purchase, transfer and conversion of existing
entitlements; and
· provide a framework, where practicable, for reversing the
degradation of natural ecosystems, where the cause of such
degradation relates to water management and use.
Under subclause (4) a water resource plan may regulate the taking of or
interfering with overland flow water if the Minister is satisfied that:
· there is a risk that such activity may impact on the outcomes of a
water resource plan;
· such activity may significantly affect the availability of water to
existing water users;
· such activity may significantly affect the extent of flooding that
provides benefit to landholders through replenishment of the
moisture content of soil that supports pasture; or
· such activity may significantly affect the frequency and the
availability of water to meet the requirements of natural
ecosystems.
Regulation under subclause (4) may be in the form of general rules
concerning the taking or interfering with overland flow water. For example,
it may limit the amount of overland flow water that a person can divert and
store in a dam to a specified volume in a specified period of time for each
hectare of the person's property. Alternatively or in addition, the regulation
may make specified taking and interfering with overland flow water, for
example, for the purposes of irrigation, subject to the requirement to obtain
a water licence. Under such circumstances the taking or interfering with
overland flow water for other purposes, for example, the construction of
contour banks to prevent erosion of soil, would not be subject to the
requirement to obtain a water licence.
Similarly, under subclause (5) a water resource plan may regulate the
taking of or interfering with subartesian water if the Minister is satisfied that
there is a risk that such activity may impact on the outcomes of a water
resource plan, or may significantly affect the--
23
Water
· availability of water to existing water users;
· availability of water to meet the requirements of natural
ecosystems; or
· quality of water.
Regulation under subclause (5) may be in the form of general rules
concerning the taking of or interfering with subartesian water. For example,
it may limit the proximity of any bore to specified watercourses in the plan
area. Alternatively or in addition, the regulation may make specified taking
of and interfering with subartesian water subject to the issue of a water
licence. For example, it may make the taking of or interfering with
subartesian water for purposes other than stock and domestic supply,
subject to the issue of a water licence.
Clause 39 states that the Minister must prepare an information report on
issues in the plan area. The information report is to contain a summary of
reasons for the plan or amendment to a plan, including particular water
allocation and sustainable management issues relevant to the plan area. It
must also contain proposed arrangements for establishing a community
reference panel to provide advice to the Minister throughout the plan
process, and proposed arrangements for technical assessment using best
scientific information available. It is not intended that this report be lengthy
or complex, but rather a concise summary to inform people who may be
affected or otherwise interested in the preparation of a water resource plan.
The report must be prepared before publishing a notice of the Minister's
intention to commence preparation of a water resource plan.
Clause 40 states that before preparing a draft water resource plan the
Minister must publish a notice of intention to prepare the plan.
"Publication" for the purposes of this clause means publication in a
newspaper circulating generally in the area and any other newspaper the
Minister considers appropriate and on the Department's website on the
internet. The notice must--
· state the purpose for which the plan is to be prepared. If the
intention is to establish water allocations this must be stated in the
purpose. The purpose will include reference to the relevant issues
and reference to any supporting data;
· state the geographic area of the plan;
· state the water to which the plan is to apply. For example, it
24
Water
might apply to water in watercourses lakes and springs, and/or
underground water, and/or overland flow water;
· state where copies of the information report may be inspected or
purchased;
· invite submissions on the proposed draft plan and on the
proposed arrangements for community consultation; and
· state arrangements for providing submissions to the Minister on
the notice.
The notice must state that submissions must be received by a set date no
earlier than 30 business days (6 weeks) after publication of the notice. A
copy of the notice must be forwarded to all local governments whose areas
are included in all or part of the proposed plan area. The local government
must make the notice available for inspection by the public. The notice also
may be sent to any other entity the Minister considers appropriate.
Clause 41 states that at the same time or after the notice is published, the
Minister must establish a community reference panel comprising
representatives of cultural, economic and environmental interests in the plan
area. This could include consumptive water users, for example, farming,
industrial and town users as well as recreational users, environmental and
catchment management interests, and indigenous interests.
The purpose of the community reference panel is to provide advice on
community views on a range of issues relevant to the development of the
water resource plan. It is not expected that the community reference panel
will provide recommendations or that a consensus view will necessarily be
agreed for all issues by the panel. It is recognised that, associated with the
diverse range of interests and backgrounds of panel members, there will
often be divergent views on a number of issues to be addressed by the plan.
Whilst the panel does not have any decision making capacity, it does
provide an important input to the water resource planning process as a
sounding board on community concerns, views and attitudes on various
aspects of the plan.
Clause 42 states that at the same time or at a time after a notice under
clause 41 is published, the Minister may publish a moratorium notice.
"Publish" for the purposes of this clause means publication in a newspaper
circulating generally in the area and any other newspaper the Minister
considers appropriate and on the Department's website on the internet. The
purpose of a moratorium is to provide for preservation of the status quo in
25
Water
an area during the preparation of the plan so that any increase in the taking
or interfering with water will be subject to the plan that is to be prepared.
The notice may provide that any application for a licence under the Water
Resources Act 1989 or an entitlement under the Bill will not be accepted or
that it will be kept on hold and not considered until the outcomes of the
planning process are known and strategies for achieving those outcomes, as
well as other plan contents, are approved. The notice can only be used by
the Minister to either halt or delay incremental decision making in relation to
water the subject of a water resource plan if the of granting or otherwise
dealing with the application could have any one or more of the effects set
out in subclause 42(2).
The notice applies equally to applications made before and after the
notice.
For all water the subject of a proposed water resource plan, the notice
may state that the construction of works, including the starting or
completing of construction cannot be progressed while the notice has effect.
This clause can be applied to any development or works to take overland
flow water and sub-artesian water that had not been the subject of any
regulation, as well as to development or works for the taking of or
interfering with water under existing entitlements.
It is intended that, where needed, a moratorium be announced on the
same day, or shortly after, a notice of proposal to prepare a water resource
plan is published. This should minimise the potential for opportunistic
development activities during the period when the plan is being prepared.
The provision for the moratorium notice to be published on or after the day
a notice to prepare a water resource plan is published, allows the Minister
some flexibility, particularly where there may be uncertainty as to whether a
moratorium is needed.
Works are not considered to have started for the purposes of this clause
unless construction has physically commenced or a legally binding contract
has been entered into for the imminent commencement of the construction.
The contract would need to be more than a verbal agreement only. Some
demonstration of the bona fides of the contract such as payment of a deposit
or purchase of materials prior to the moratorium date would also need to be
proven. Also, a construction program and detailed plans showing the extent
of the works to be undertaken must have existed prior to the date of the
moratorium notice. Also, all permits required under the Local Government
Act 1993 and the Integrated Planning Act 1994 for the works must also
26
Water
have been issued or given prior to the moratorium date. The program of
works construction must be independently verifiable as a program for
construction of the works.
The moratorium has effect until the draft water resource plan is either
approved or the Minister publishes a notice of intention not to proceed with
the making of a water resource plan under clause 52.
Clause 43 states that if a moratorium notice remains in force after
12 months, the Minister must review the need for continuation of the
moratorium in its current form and amend it if necessary. This is to ensure
that a moratorium does not unnecessarily continue for a period without
being updated.
Clause 44 states that the Minister must publish a notice about any
amendment to a moratorium. An amendment to a moratorium may contain
anything that a moratorium notice under clause 42 could contain.
Clause 45 states that a moratorium cannot prevent the issuing of a permit
to take water, or an authority for the taking of water from a watercourse,
lake or spring, or overland flow water for domestic or stock watering
purposes, or for temporary camping purposes or emergency purposes.
It also states that the Minister can exempt other matters. This will enable
the Minister to design the moratorium so that it will only impose restrictions
that are necessary to minimise the risk of significant negative changes to the
status quo in an area during the planning process. For example, it may be
necessary to prohibit the construction of works that would increase the
taking of or interfering with overland flow water in an area. However,
construction of flood mitigation works for a public purpose by a local
government in the same area may be specifically exempted from the general
prohibition where there is a public benefit.
Clause 46 provides that a water resource plan must contain details about
the plan's purpose, area, types of water it covers such as water in
watercourses, lakes and springs, underground water and overland flow
water, monitoring requirements for water and natural ecosystems, plan
outcomes, periodic reporting requirements and a schedule of proposed
arrangements for implementing the draft plan after it has been approved.
Outcomes that must be stated include ecological outcomes such as
improving riverine environments in a measurable way and managing water
in a sustainable way, recognising specific environmental water needs.
Outcomes may also include achieving greater security for water users and
27
Water
greater security for infrastructure operators or further water development in
an area. Periodic reporting requirements refer to the reports the Minister
must prepare in relation to progress of the plan during the plan's ten year
period. The plan must state how often the reports will be prepared such as
annually or biannually. The schedule of proposed arrangements for
implementing the plan will contain a list of priority areas within a water
resource plan area. Existing water entitlements in identified priority areas
will be converted under the resource operations plan to transferable water
allocations in preference to other water entitlements in the same catchment.
Alternatively, areas may be identified as preferred areas for proceeding
under a resource operations plan with further water development in priority
to other areas. Economic, environmental, social and cultural needs must all
be considered in setting the priorities.
The plan may also contain maps, details of areas where the taking of, or
interfering with overland flow, sub-artesian water (or both) is intended to be
regulated, the types of works that will be assessable development or self
assessable development for the taking of overland flow or sub-artesian
water, information about future water needs and priorities (including
whether particular unallocated water will be granted or reserved and if it is to
be granted, how decisions about unallocated water will be made), criteria for
sharing overland flow, criteria for adjusting existing water entitlements if
this is necessary to meet environmental flow objectives and other plan
outcomes. Other plan outcomes include criteria for addressing degradation
that has occurred in natural ecosystems and for improving the quality of
naturally occurring water and other resources including reversing
degradation to promote sustainable management.
If the plan provides a framework for establishing water allocations, the
plan must contain details of the objectives for environmental flow and water
allocation security together with the performance indicators for these
objectives and priority areas for conversion or granting of water allocations.
It is intended that a draft plan may present a range of scenarios in order to
facilitate public discussion and submission on the draft plan.
Clause 47 provides that the Minister must consider certain things when
preparing the draft water resource plan that is released for public
consultation and review. The Minister must consider the State's water
rights as set out in chapter 2, part 2 and the volume of water and quality of
the water covered by the plan. The Minister must consider objectives and
priorities for promoting sustainable development, including policies set at
28
Water
national, state and regional levels. Water flows needed to support natural
ecosystems must be considered using the best scientific information
available to the Minister, and underground water levels and underground
water recharge processes necessary to support natural ecosystems must also
be considered. Existing authorisations and entitlements for the taking of
water as well as future cultural, economic, environmental and social
requirements of the State such as whether new water development is
required to service industry and proposed industry in an area, must be
considered. Cultural, economic and social values of and within the plan
area, advice form community reference panels, technical assessments,
effects the plan will have on other water not covered by the plan (such as
underground water if the plan only relates to water on the surface), effects
the plan will have on water covered by the plan, environmental values set
out in the Environmental Protection (Water) Policy 1997, sustainable
resource management strategies and policies and all submissions properly
made, within the definition in Schedule 4, must also be considered. In
some instances there may be an overlap between cultural values, economic
values, environmental values and social values. Cultural values include
indigenous values, recreational values and aesthetic values. Social values
include community developments needs, location and relocation of people
and industries and managing any change in a sustainable way.
Clause 48 provides that on or before the publication of the notice about
the draft plan, the Minister must prepare an overview report. The purpose
of this report is to provide an overview of issues being addressed by the
plan, possible management strategies, technical and other information on
which the strategies are based and other information relevant to the
development of the draft plan.
Clause 49 provides that a notice must be published when the draft plan
has been prepared. The notice must state where copies of the draft plan can
be inspected and purchased. It must also provide that submissions may be
made by any person about the draft plan and submitted to the Minister by a
set date no earlier than 30 business days (6 weeks) after publication of the
notice. "Publish" for the purposes of this clause means publication in a
newspaper circulating generally in the area and any other newspaper the
Minister considers appropriate and on the Department's website on the
internet. A copy of the draft plan and the public notice must be forwarded
to all local governments whose areas are included in all or part of the
proposed draft plan area and may be forwarded to any other organisation
considered appropriate. Local governments are required to make the draft
29
Water
plan available for public inspection.
Clause 50 provides that when preparing a final draft of a water resource
plan all properly made submissions must be considered. "Properly made
submission" for the purpose of this clause means a written submission
made and signed by a person or representative of an entity, that is received
by the person stated in the notice, for example, the chief executive, on or
before the last day for the making of submissions and that states the name
and address of each person or representative of an entity making the
submission, the grounds of the submission and the facts and circumstances
relied on in support of the grounds. Submissions will include any reviews
or audits of scientific and other information used to prepare the plan that are
prepared by agencies such as the agency responsible for administering the
Environmental Protection Act 1994, requested by the Minister. To be
effective, the final draft plan must be approved by the Governor in Council
as the water resource plan for an area. Each approved water resource plan
will be effective for 10 years unless, as a result of a review, a new plan is
prepared and approved. The content of the final draft plan must comply
with the requirements of clause 46.
Clause 51 provides that a report must be prepared on a water resource
plan within 30 business days (6 weeks) of its approval. The report must
contain a summary of issues dealt with during the consultation process.
Clause 52 applies if a decision is made not to proceed towards the
preparation of a final draft water resource plan. A notice of the decision and
the reasons for the decision must be published. "Publish" for the purposes
of this clause means publication in a newspaper circulating generally in the
area and any other newspaper the Minister considers appropriate and on the
Department's website on the internet. A copy of the notice must also be
sent to each local government or entity in receipt of a notice of the proposed
preparation of a plan and/or the draft plan. The local government is required
to make a copy of the notice available for public inspection.
Subdivision 2--Periodic reports and accountability matters
Clause 53 provides that periodic reports as specified in the approved
water resource plan must be prepared within the timeframe mentioned in the
plan.
30
Water
Clause 54 provides that each report to be prepared for a reporting period
outlined in the plan, must include a number of matters to assess the
effectiveness of the implementation of the plan in meeting its objectives.
Subdivision 3--Amending or preparing new, water resource plan
Clause 55 provides that a plan may be amended or replaced with a new
plan at any time. Where the Minister is satisfied that a periodic report
shows environmental flow objectives or water allocation security objectives
are not being met, the Minister must review the plan.
Clause 56 provides that the process for amendment of a water resource
plan is the same as the process for preparation of a water resource plan
provided for in clauses 38 to 52 inclusive.
Clause 57 provides that a minor amendment may be made if it is to
correct a minor error or other change that is not of substance, or the type of
change was contemplated in the plan. An example of a change that may be
specifically contemplated in a plan is the extension of water allocation
security objectives or environmental flow objectives to additional parts of
the plan area in relation to water to which the plan applies.
Subdivision 4--General
Clause 58 provides that a regulatory impact statement under the Statutory
Instruments Act 1992 is not required for preparation of or amendment to a
water resource plan because of the extensive notification and consultation
processes prescribed in chapter 2, part 3, division 2 of the Bill.
Division 3--Managing water use
Subdivision 1--Preliminary
Clause 59 provides that the purpose of division 3 is to allow for the
regulation of water use where there is a risk of land and water degradation
as a result of water use. Water use regulation is necessary because some
31
Water
water use practices have been adopted without sufficient recognition of the
fragility of the land, the interactions between water use practices, and
delicately balanced ecosystems. Inappropriate land development and
excessive or inappropriate use of water can cause serious problems such as
erosion of cropping land, water quality problems and rising water tables. It
is not the intention that this division deal with the efficiency of water use,
although some water efficiencies may result from implementation of land
and water management planning requirements.
Subdivision 2--Preparing and approving water use plans
Clause 60 enables the Minister to prepare a water use plan for any part of
Queensland if there are risks that water use in a particular area of
Queensland may cause harmful effects on land and water resources.
Subclause (1) provides examples of negative effects on land and water
which may be caused by water use including rising underground water
levels, increasing salinisation, deteriorating quality of water, water logging
of soils, destabilisation of bed and banks of watercourses, damage to
riverine environment, and increasing soil erosion.
Subclause (2) provides that only one water use plan may have effect for
any part of Queensland at any time, except, as subclause (2A) provides,
where there is be an additional separate water use plan in the same area for
artesian water and sub-artesian water and springs connected to artesian
water, such as the Great Artesian Basin. The plans in the same area cannot
refer to the same water.
Subclause (3) provides that the Minister must prepare a draft water use
plan, before proceeding to recommend that a final water use plan be
approved by the Governor in Council.
Clause 61 sets out the procedure for the public notice of a proposal to
prepare a draft water use plan.
Subclause (1) provides that the Minister must publish a notice of the
intention to prepare a draft water use plan for the area. "Publish" for the
purposes of this subclause means publication in a newspaper circulating
generally in the area and any other newspaper the Minister considers
appropriate and on the Department's website on the internet.
Subclause (2) provides that the notice must state the purpose for which
32
Water
the draft plan is being prepared, the proposed plan area, details of how it is
intended that community and technical consultation for the preparation of
the draft plan will take place, that written submissions may be made by any
person and details of where and when submissions are to be made.
Subclause (3) provides that the day by which submissions must be made
must not be earlier than 30 business days (6 weeks) after the day the notice
is published.
Subclause (4) provides that the Minister must send a copy of the notice to
each local government whose area includes all or part of the proposed plan
area.
Subclause (5) provides that each local government receiving a notice of
the proposal must make a copy of the notice available for inspection by the
public.
Subclause (6) provides that the Minister may send a copy of the notice to
any other entity the Minister considers appropriate.
Clause 62 sets out the content of draft water use plans.
Subclause (1) provides that the draft water use plan must state the
purpose of the draft plan, contain a map of the proposed plan area, state the
types of water use subject to the plan, state the standards for water use
practices, state the objectives for water use efficiency, water reuse and water
quality and the monitoring requirements and responsibilities of the
Department, water services providers and water users.
Subclause (2) provides that the draft plan may also include a description
of land within the proposed plan area for which a land and water
management plan must be approved for the use of water by a person for
irrigation and schedules for the progressive implementation of the draft
plan's requirements. When a water use plan is approved it overrides other
provisions of the Bill that require a person to prepare a land and water
management plan. If a water use plan requires that a land and water
management plan be prepared for irrigation of specified land, then this will
apply to existing irrigation as well as new irrigation enterprises. Similarly,
if a water use plan does not require that a land and water management plan
be prepared for other lands, the land and water management plan need not
be prepared even if a water allocation is purchased for new irrigation. The
intention is to use district standards established under the water use plan to
minimise the need for land and water management plans. The intention is
that land and water management plans should be required for areas where
33
Water
risk of land or water degradation is high.
Clause 63 provides that when preparing the draft water use plan the
Minister must have regard to changes to water use practices that will reduce
the risk to land and water resources arising from the use of water on land
and to existing industry codes of practice for water use.
Clause 64 provides that a notice must be published when the plan has
been prepared. "Publish" for the purposes of this clause means publication
in a newspaper circulating generally in the area and any other newspaper the
Minister considers appropriate and on the Department's website on the
internet. The notice must state where copies of the plan can be inspected
and purchased and invite submissions on the plan. A copy of the plan and
the public notice must be forwarded to all local governments whose areas
are included in all or part of the proposed plan area. The local governments
are required to make the plan available for public inspection.
Clause 65 requires that when preparing a final draft of a water use plan
all properly made submissions must be considered. "Properly made
submission" is defined in schedule 4 of the Bill. To be effective, the final
draft plan must be approved by the Governor in Council. The approved
plan has effect for 10 years, is subordinate legislation and is binding on
water users for the types of water use identified in the plan.
Clause 66 requires that the chief executive must as soon as practicable
after the final draft or amendment of a water use plan is approved publicly
notify the requirements of the plan or amendment for water users and
conduct public meetings to explain the requirements. The intention is that
all reasonable efforts are to be made to ensure that water users affected by
the plan are aware of their obligations under the plan.
Clause 67 applies if a decision is made not to proceed with the
preparation of a final draft water use plan or amendment. A notice of the
decision must be published and a copy sent to each relevant local
government. "Publish" for the purposes of this clause means publication in
a newspaper circulating generally in the area and any other newspaper the
Minister considers appropriate and on the Department's website on the
internet. The local government is required to make a copy of the notice
available for public inspection.
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Water
Subdivision 3--Amending or preparing new, water use plans
Clause 68 provides that the Minister may at any time amend a water use
plan or prepare a new plan to replace an existing water use plan. The
intention is to enable the Minister to act when the Minister is satisfied that an
existing water use plan is not addressing the risk to land and water arising
from the use of water on land.
Clause 69 provides that a water use plan may be amended or a new water
use plan prepared, in the same way that an initial water use plan is prepared
under clauses 61 to 67 inclusive.
Clauses 70 provides that a minor amendment may be made to a water
use plan if it is to correct a minor error or other change that is not of
substance, or the change is a type of change identified in the water use plan.
A minor amendment may be approved by the Governor in Council without
following the steps for preparation of a water use plan under clauses 61
to 67 inclusive.
Clause 71 provides that a regulatory impact statement under the Statutory
Instruments Act 1992 is not required for preparation of or amendment to a
water use plan because of the extensive notification and consultation
processes prescribed in chapter 2, part 3, division 3 of the Bill.
Subdivision 4--Preparing and approving land and water management
plans
Clause 72 sets out the procedure for preparing guidelines for land and
water management plans by individuals. A land and water management
plan is a plan relating to the irrigation of an individual property.
Subclause (1) provides that the chief executive may issue guidelines for
the preparation of land and water management plans.
Subclause (2) provides that before issuing the guidelines the chief
executive must prepare draft guidelines and publish a notice when the draft
guidelines have been prepared. "Publish" for the purposes of this clause
means publication in a newspaper circulating generally in the area and any
other newspaper the Minister considers appropriate and on the
Department's website on the internet.
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Water
Subclause (3) provides that the notice must state where copies of the draft
guidelines may be inspected and on payment of a fee, purchased. It
provides that written submissions may be made by any person about the
draft guidelines.
Subclause (4) provides that the day by which the submissions must be
made must not be earlier than 30 business days (6 weeks) after the day the
notice is published.
Subclause (5) provides that the chief executive may send a copy of the
notice to any entity the chief executive considers appropriate.
Subclause (6) provides that the chief executive may amend any
guidelines provided the sane procedures are followed.
Clause 73 subclauses (1) and (2) specify the persons who must have a
land and water management plan approved before using water for irrigation.
They are:
· Persons who propose to use for irrigation water taken under a
water allocation or interim water allocation, except where the
water allocation or interim water allocation was obtained by
conversion of an existing water licence or was purchased along
with land as an ongoing irrigation enterprise for which the
previous owner did not need a land and water management plan;
and
· Persons irrigating, with water from any source, land that a water
use plan specifies as land which is only be irrigated under an
approved a land and water management plan.
Subclause (3) provides that persons identified in subclauses (1) and (2)
must not use the water for irrigation of the land unless the chief executive
has approved a land and water management plan or deferred the
requirement to submit a plan for approval.
Clause 74 provides that a person may apply for approval of a land and
water management plan that has been prepared in accordance with
guidelines for the preparation of land and water management plan
mentioned in clause 72.
Clause 75 provides that the chief executive may require the applicant to
provide additional information to support the application for approval of a
land and water management plan for the use of water on land, or that this
additional information be verified by statutory declaration.
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Water
Clause 76 provides that when the chief executive is deciding whether to
approve or refuse a land and water management plan, the following must be
considered:
· consistency with any guidelines for the preparation of land and
water management plans issued by the chief executive;
· the application and any additional information given in relation to
the application;
· the risk to natural resources arising from the use of water on land,
including, for example, rising ground water tables, salinisation or
soil erosion;
· existing industry codes of practice for water use;
· policies developed in consultation with local communities for the
use of water; and
· the public interest.
Clause 77 sets out the procedures associated with approving or refusing a
land and water management plan.
Subclause (1) provides that if the chief executive is satisfied the land and
water management plan should be approved, the chief executive must
approve the plan or approve the plan as amended by the chief executive for a
period of not more than 10 years.
Subclause (2) provides that if the chief executive is not satisfied with the
application, the land and water management plan must be refused.
Subclause (3) provides that the applicant must be given notice of the chief
executive's decision and the reasons for it within 30 business days
(6 weeks) of the decision.
Subclause (4) provides that the chief executive must give the applicant a
copy of the approved land and water management plan, with or without
amendments, within 30 business days (6 weeks) after approving the land
and water management plan.
Subclause (5) provides that the land and water management plan has
effect from the day the chief executive gives the applicant the information
notice.
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Water
Subdivision 5--Amending land and water management plans
Clause 78 provides that the owner of the land to which the land and water
management plan relates can apply to amend the plan. Application for
amendment of a land and water management plan is dealt with in the same
way as application for a land and water management plan under clauses 74
to 77 inclusive.
Subdivision 6--Deferring requirement for approved land and water
management plans
Clause 79 provides that a person may apply for a deferral of the
requirement to submit a land and water management plan. The application
must be made to the chief executive in the approved form, be supported by
sufficient information for the chief executive to decide the application and be
accompanied by the prescribed fee.
Clause 80 provides that the chief executive may require the applicant to
give additional information to support the application for deferral or to
verify additional by statutory declaration.
Clause 81 sets out the criteria for deciding deferral applications. The
chief executive must consider the following the:
· hardship the applicant would suffer if the application were not
granted;
· susceptibility of the land and water, the subject of the application,
to degradation;
· application and additional information given in relation to the
application; and
· public interest.
Clause 82 sets out the procedure for deciding an application for deferral
of the requirement for a land and water management plan.
Subclause (1) provides that if the chief executive is satisfied the
application for deferral should be approved, the chief executive must
approve the application and defer the requirement for a period of not more
than one year.
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Water
Subclause (2) provides that more than one application may be made
under subclause (1).
Subclause (3) provides, however, that the approval of an application
made under subclause (1) must not defer the requirements under
clause 73(3) for more than one year after the date of the first application.
Subclause (4) provides that if the chief executive is not satisfied an
application should be approved, the chief executive must refuse the
application.
Subclause (5) provides that within 10 business days (2 weeks) of
deciding the application, the chief executive must give the applicant notice of
the decision and the reasons for the decision.
Subclause (6) provides that the deferral has effect from the day the chief
executive gives the applicant an information notice. "Information notice" is
defined in schedule 4 of the Bill.
Clauses 83--93 not used. See footnote at end of chapter 1.
PART 4--IMPLEMENTING WATER RESOURCE
PLANS
Division 1--Preliminary
Clause 94 provides that the purpose of this part is to implement water
resource plans through the development of resource operations plans.
A resource operations plan is a plan that details how the objectives of a
water resource plan are to be achieved. The resource operations plan for a
water resource plan will be developed progressively in accordance with the
implementation schedule detailed in the water resource plan. In certain
circumstances, a resource operations plan or an amendment to a water
resource plan may be developed in parallel to the development of or
amendment to a water resource plan.
The part implements a water resource plan through the:
· Preparation of a resource operations plan;
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Water
· Granting of resource operations licences to water infrastructure
operators;
· Conversion of existing entitlements to water allocations that are
separate from land and transferable within rules set in the resource
operations plan; and
· Grant of water allocations, including allowing for their
registration.
Division 2--Resource operations plans
Subdivision 1--Preparing and approving resource operations plans
Clause 95 provides that a notice must be given to water infrastructure
operators, for example, a dam operator, requesting that the operator provide
details of the proposed operating arrangements for their infrastructure. The
arrangements must demonstrate how the infrastructure will be operated to
comply with an approved water resource plan. The notice must set a date,
no earlier than 30 business days (6 weeks) after the notice is given, by
which time the operator must provide details of the proposed arrangements.
Clause 96 provides that a notice must be published advising of an
intention to prepare a resource operations plan. "Publish" for the purposes
of this clause means publication in a newspaper circulating generally in the
area and any other newspaper the Minister considers appropriate and on the
Department's website on the internet. The notice must state the proposed
plan area, the water to which the plan will apply, details of consultation
processes and where and when submissions may be made.
Clause 97 provides that all holders of an interim resource operations
licence, resource operations licence or other authorisation to operate water
infrastructure in the plan area, be requested to provide their proposed
arrangement for the management of the water including for example
proposed water allocation transfer rules and proposed water and natural
ecosystem monitoring practices. These arrangements must demonstrate
how the holder proposes to manage the water to meet the environmental
flow objectives and water allocation security objectives set out in the water
resource plan.
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Water
Clause 98 sets out the information to be contained in a resource
operations plan. Subclause (1) provides that a resource operations plan
must include:
· Reference to the water resource plan for which the draft plan is
being prepared;
· A map of the proposed plan area;
· Details of the water to which to plan will apply (for example,
overland flow);
· Water infrastructure in the plan area and how it is to be operated
(based on arrangements supplied under clause 97);
· How water will be managed by the chief executive;
· Monitoring practices and responsibilities for monitoring water
and aquatic ecosystems; and
· How the draft plan addresses water resource plan outcomes.
Subclause (2) states that the draft plan may also include--
· A map or diagram or series of maps or diagrams showing water
information for the proposed plan area;
· Rules applying to environmental management, seasonal water
assignments and water sharing for the draft resource operations
plan;
· Information about future water needs and priorities including
whether particular unallocated water will be granted or reserved
and if it is to be granted, how decisions about unallocated water
will be made. Processes for granting or otherwise dealing with
water, as defined in schedule 4, include public auctions, public
ballots and public tenders.
· Changes to be made to existing water entitlements; and
· Implementation schedule setting out a 5 year progressive
implementation plan.
Subclause (3) provides that if the draft plan is to provide for the
regulation of overland flow, then the draft plan must state the minimum
share of overland flow that each owner of land in the proposed plan area
may divert. In some circumstances, the minimum share of water may be
no more than that necessary to meet the water requirements of the owner of
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Water
land for watering of stock or domestic purposes. The share of overland
flow could, for example, limit the amount of overland flow that an owner of
land can divert and store in a dam to a specified volume for each hectare of
the owner's property. The minimum share may be described in a schedule
in the resource operations plan.
Subclause (4) provides that if the draft plan is to provide for water
allocations, it must state the rules for, and details of, the conversion of
existing entitlements to water allocations including the environmental
management and transfer rules for the water to which the plan is intended to
apply.
Subclause (5) provides that the transfer rules may contain limits on the
volume of water that may be transferred between different locations and for
different purposes. The intent of this clause is to ensure that transfers that
could cause significant cultural or economic impacts on an area do not occur
without prior assessment of whether the proposal is in the public interest.
Clause 99 provides that before a final version of the resource operations
plan is submitted to the Governor in Council for approval, the chief
executive must consider:
· The water resource plan or draft water resource plan, including
any proposal for an amendment or review of the water resource
plan;
· All properly made submissions about the draft plan, including the
conversion of existing entitlements;
· Proposed operating arrangements as mentioned in clause 97; and
· The public interest.
Clause 100 provides that a notice must be published when the draft plan
has been prepared. "Publish" for the purposes of this clause means
publication in a newspaper circulating generally in the area and any other
newspaper the Minister considers appropriate and on the Department's
website on the internet. The notice must state where copies of the draft plan
can be inspected and purchased for a prescribed fee. The notice must also
invite submissions on the draft plan by any entity by a set date that is no
earlier than 30 business days (6 weeks) after the publication date. A copy of
the draft plan and the public notice must be forwarded to all local
governments whose areas are included in all or part of the proposed plan
area and also to each water infrastructure operator who provides details of
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Water
operating arrangements under clause 97. A copy of the notice may also be
forwarded to any other organisation (incorporated or unincorporated)
considered appropriate by the chief executive. Local governments in receipt
of a copy of the draft plan are required to make the copy available for public
inspection.
Clause 101 provides that the notice given under clause 100 must also
state that notices may be given to the chief executive by existing water
entitlement holders or entities who have or claim to have an interest in the
water entitlement that is to be converted to a water allocation.
In respect of existing water entitlement holders the notice that may be
given is about the holders' request to be recorded on the water allocations
register, other than as tenants in common in equal shares. This will ensure
that registration can subsequently be effected under 121(4) in accordance
with the notice mentioned in this clause.
In relation to entities who have the consent of the water allocation holder,
notice can be given indicating that the interest holder wishes to have their
interest recorded on registration of the water allocation (which is effected
under clause 121(4)). An example of an interest holder who may wish to
take advantage of this provision would be a financier who has an interest in
land to which an existing water entitlement attaches.
Where the existing interest holder does not have the necessary consent,
but notice is given of the interest holders' intention to take action to have the
interest recorded on the water allocations register, the notice triggers a
moratorium on the registration of dealings against the water allocation for a
period of 20 business days (4 weeks) after registration of the allocation.
This will enable time for the bringing of a legal action to either establish the
interest, or obtain an order to prevent dealings being registered after the end
of the moratorium period until the matter is resolved.
Clause 102 applies if a submission made on the draft plan requests that a
change be made to a proposed water allocation, environmental management
rule, water sharing rule or an implementation schedule.
Subclause (2) provides that after the closing date for submissions has
passed, the chief executive must establish a referral panel if submissions
received include submissions about proposed water allocations and each
relevant submission is not inconsistent with the water resource plan or
related to a matter that the chief executive agrees to amend without further
consideration. General provisions about constitution of the referral panel are
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Water
set out in chapter 8, part 4. If submissions about proposed water allocations
including adjustment arrangements to implement any conversions of
existing water entitlements are provided to the chief executive, a referral
panel is to be established and the chief executive must provide collated
information about all relevant submissions to the panel. The panel has
30 business days (6 weeks) to review the information received and make
their recommendations to the chief executive.
Clause 103 provides that when preparing the final draft resource
operations plan, the chief executive must consider all properly made
submissions and, if clause 102 applies, the recommendations made by the
referral panel. "Properly made submissions" are defined in schedule 4 of
the Bill. The resource operations plan is not effective until it has been
approved by the Governor in Council and approval is notified in the
Government Gazette. The content of a final draft resource operations plan
must include the contents set out in clause 98.
Clause 104 applies if the chief executive decides not to proceed with the
preparation of a final draft resource operations plan. A notice of the
decision and the reasons for the decision must be published. "Publish" for
the purposes of this clause means publication in a newspaper circulating
generally in the area and any other newspaper the Minister considers
appropriate and on the Department's website on the internet. A copy must
also be sent to each local government or entity in receipt of a notice of the
proposed preparation of the draft resource operations plan and/or draft
resource operations plan. The local government is required to make a copy
of the notice available for public inspection.
Subdivision 2--Amending resource operations plans
Clause 105 provides that a resource operations plan may be amended by
the chief executive provided clauses 95 to 104 which refer to preparing a
resource operations plan, are followed for the amendment. The amendment
may:
· Change the plan area;
· Amalgamate the plan with another or part of another resource
operations plan;
· Change the plan's operating arrangements for water
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Water
infrastructure; and
· Any other requirements of the plan.
Clause 106 provides that the Governor in Council may approve an
amendment of a resource operations plan without clauses 95 to 104 which
refer to preparing a resource operations plan, being followed. The
amendment may be made if:
· It relates to correction of a minor error in the resource operations
plan;
· A change to the resource operations plan that is not a change of
substance; or
· The type of change is a change of a type that has been stated in the
resource operations plan as a change that can be made in this way.
Division 3--Resource operations licences
Subdivision 1--Granting resource operations licences
Clause 107 provides that upon a resource operations plan coming into
effect:
· All interim resource operations licences for water infrastructure
covered by the plan automatically cease to exist; and
· All interim resource operations licences for management of water
covered by the plan automatically cease to exist; and
· On the same day the chief executive must grant to each former
interim resource operations licence holder, a resource operations
licence in accordance with the terms and conditions, including
where relevant water infrastructure operating arrangements, that
are set out in the resource operations plan.
Clause 108 applies where a resource operations plan provides a process
for the granting of a resource operation licence to meet future water
requirements. "Process" is defined in schedule 4 to mean selling or dealing
with water entitlements or interim resource operations licences by public
auction, public ballot or public tender. Under this clause, the chief executive
must follow the process outlined in the resource operations plan and grant
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Water
resource operations licences in accordance with the process.
Subdivision 2--Content and conditions of resource operations licences
Clause 109 sets out the contents of a resource operations licence
including the details of the licencee, for example, name, address and
Australian Company Number, the resource operations plan to which the
resource operations licence relates, any water infrastructure to which the
resource operations licence relates and any specific conditions applying to
the licence. Conditions may be set out in a resource operations plan or
through a resource operations licence.
Clause 110 requires a resource operations licence holder to comply with
the conditions of a resource operations licence contained in both the Bill and
where expressly referred to, in the resource operations plan also. The types
of conditions that may be included in a resource operations licence include
requiring a holder of a resource operations licence to supply information to
the chief executive for the administration or enforcement of the Bill.
Requests for information must be reasonable and must relate to the activities
authorised under the resource operations licence such as releases made from
a dam, or flow levels in the relevant part of a watercourse and other types of
information that an operator of a dam would ordinarily collect as part of its
normal operations. Resource management aspects of a resource operations
licence holder's activities includes data that a responsible licence holder
would reasonably be expected to collect as data in the usual course of
business having regard to the activities authorised under the licence, the type
of catchment, whether the licence holder's operations are capable of
significantly impacting on other water and natural resources in the
catchment and general public health and safety.
Subdivision 3--Amending resource operations licences
Clause 111 provides for amendment of a resource operations licence
consistent with an amendment to a related resource operations plan. It is
anticipated that most of the operating conditions of the resource operations
licence will be set out in the resource operations plan and cross-referenced to
a particular resource operations licence. It will therefore be necessary to
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Water
amend a resource operations licence following an amendment to the
resource operations plan.
Clause 112 provides that the chief executive may amend a condition of a
licence if the chief executive is satisfied that the resource operations licence
holder has made a false or misleading representation or declaration at any
stage or the licence holder has contravened a provision of the Bill.
Amendment is one of the options available to the chief executive if the chief
executive is satisfied that any of the above acts or omissions have occurred.
Other options include prosecution for breach of a condition of a licence or if
necessary, cancellation of the licence. Before making an amendment under
the clause, the chief executive must give the resource operations licence
holder a show cause notice. The requirement for a show cause notice is set
out in clause 779.
Any properly made submission by the resource operations licence holder
must be considered by the chief executive when deciding whether to
proceed with the amendment. The resource operations licence holder must
be notified by the chief executive of the decision to either proceed or not to
proceed with the amendment and is effective from the day the information
notice is given.
Clause 113 provides that the chief executive may amend a licence
without complying with the provisions of subdivision 3, if the amendment
is to correct a minor error or other change that is not of substance, or is of a
type of amendment contemplated in the resource operations licence or the
licensee agrees to the amendment.
Subdivision 4--Transferring resource operations licences
Clause 114 provides that a resource operations licence holder may apply
to transfer the resource operations licence. The application must be made in
the approved form together with supporting information and be
accompanied by the prescribed fee. The application of transfer can only be
in relation to change of beneficial ownership of the licence. It cannot refer to
relocation of the water infrastructure.
Clause 115 provides that the chief executive may require the applicant for
the transfer of a resource operations licence to provide additional
information, which, included with information contained in the application,
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Water
may need to be verified by statutory declaration if the chief executive
requires verification.
Clause 116 provides that the chief executive's decision about the
application of the resource operations licence must be made within
30 business days (6 weeks) of the application.
Clause 117 provides that if the transfer is approved, the resource
operations licence holder and transferee must be notified and the existing
resource operations licence must be cancelled or amended to give effect to
transfer of responsibility of a part or all of the water infrastructure, the
subject of the original resource operations licence. The new resource
operations licence must be issued to the transferee and the new resource
operations licence takes effect from the date the notice is given to the
transferee.
Clause 118 provides that if the transfer is refused, the applicant must be
notified within 30 business days (6 weeks) of the decision and the reasons
for the refusal.
The transfer may be refused if, in the chief executive's opinion, the
applicant does not have the necessary experience to be a licensee or is not a
suitable person to hold a resource operations licence based on the following
grounds:
· The applicant has been convicted of an offence against the Bill or
an interstate law, or has held a resource operations licence that
was cancelled or suspended under the Bill or an interstate law;
· If the applicant is a corporation and, an executive officer of the
corporation:
· has been convicted of an offence against the Bill or an interstate
law, or has held a resource operations licence that was cancelled
or suspended under the Bill or an interstate law; or
· is or has been an executive officer of a corporation that has been
convicted of an offence against the Bill or an interstate law, or that
held a resource operations licence that was cancelled or suspended
under the Bill or an interstate law.
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Water
Subdivision 5--Cancelling resource operations licences
Clause 119 provides the grounds on which the chief executive may
cancel a resource operations licence. If a resource operations licence holder
is first convicted of an offence under section 813 for non-compliance with
the conditions of the licence, the chief executive cannot require that the
resource operations licence holder's licence also be cancelled under this
clause. It is not intended that any action taken by the chief executive under
this clause, would prevent a third party from claiming for compensation for
loss or damage in any way.
Clause 120 provides that if the chief executive is satisfied that grounds
exist for the cancellation of a resource operations licence, the resource
operations licence holder is to be given a show cause notice. The
requirements for the show cause notice are set out in clause 779. The
resource operations licence may be cancelled if, after considering any
properly made submissions by the resource operations licence holder, the
chief executive decides that sufficient grounds exist for cancellation. The
resource operations licence holder must be given notice within 10 business
days (2 weeks) of the decision.
The decision takes effect on the later of the day when the appeal period
ends, or the appeal is withdrawn, or the appeal is decided. However, if
cancellation is based on the conviction of a person for an offence, the
cancellation does not take effect until--
· The day the period for appeal against the conviction ends; and
· If an appeal is made, the appeal is finally decided.
Cancellation does not take effect if the conviction is quashed on appeal.
Division 4--Water allocations
Subdivision1--Converting water entitlements and granting water
allocations
Clause 121 provides for the conversion of existing water licences and
interim water allocations to water allocations. On the date the resource
operations plan has effect, details of converted water allocations are to be
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Water
recorded on the water allocations register.
Subclause (2) provides that despite subclause (1), the registrar must not
record converted water allocations on the water allocation register for water
allocation's supplied by a resource operations licence holder until the
registrar has received notice from the resource operations licence holder that
a supply contract between the water allocation holder and resource
operations licence holder has been entered in to. It is necessary for the
resource operations licence holder to provide this notice as the subclause has
been inserted to protect the resource operations licence holder's interests.
Subclause (2) does this by ensuring that only water allocation holders with
contractual arrangements to be supplied may be registered for water
allocations in those parts of a watercourse or other body of water where
water infrastructure is operated and supply of water is controlled by a
resource operations licence holder.
Subclause (3) provides that the subclause (2) requirements for a
pre-existing supply contract as a precondition to registration of water
allocations, do not apply if the resource operations licence holder and water
allocation holder are one and the same person.
Subclauses (4) and (5) provide that the chief executive must record the
details of the holder of a water allocation in the way notified under
clause 101(a), for example, as joint tenants instead of as tenants in common
and must record the interests notified under clause 101(b)(1) if consent of
the water allocation holder is provided.
Subclauses (6) and (7) also provide for the recording of interests that
existed in relation to land to which licences for water attached under the Act,
prior to their conversion to a water allocation. Where notice is given with
the consent of the water allocation holder under clause 101(b)(i) at the time
of the conversion, the interest is to be recorded in accordance with the
priority the interest has in the land registry for the land to which the former
water entitlement attached. Interests that may be recorded under these
subclauses may include, for example, the interest of a financier under the
terms of a loan agreement and related security documentation, which would
be noted on the register as a mortgage.
If there has been more than one notice given under clause 101, the
interests are to be recorded in the priority the interests have on the land
registry for the land to which the former water entitlement related. If the
interest is not an interest recorded in the land registry, the interest must be
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Water
registered in the priority in which the interest was lodged on another
register, for example, the Bills of Sale register or, if unregistered, in the
priority in which the interest was lodged for registration on the water
allocations register.
Subclauses (6) and (7) also provide for the registration of the interests of
multiple holders of a water allocation in accordance with their preference
where they have given the necessary notice provided for under
clause 101(a). For example, although the presumption is that multiple
holders of a water allocation hold their interests as tenants in common
(clause 101(a)), all of the holders may consent to having their interests
recorded instead as joint tenants. The allocation must be recorded in
accordance with the notice as to the preference of the holders. Where no
notice is given under clause 101(a), the interests of the holders will be
recorded as tenants in common in equal shares under clause 101(a)
and 101(1)(a).
If after registration of the water allocation, the holders wish to alter the
way in which they hold their interests in the allocation (e.g. from joint
tenants to tenants in common), they may use the transfer process under the
Bill.
Clause 122 provides for the granting and registration of new water
allocations pursuant to the process set out in a resource operations plan.
Opportunities for new water allocations are likely to arise where surplus
capacity is identified within a particular catchment area. These opportunities
will be identified in the water resource plan and resource operations plan.
"Process" is defined in schedule 4 of the Bill may include, for example, the
sale by public auction or some other means of water allocation. If the water
allocation to be granted will be supplied by a resource operations licence
holder, the resource operations licence holder must provide the registrar
with notice that a supply contract has been entered into by the water
allocation holder and resource operations licence holder prior to the registrar
recording the water allocation on the water allocation register.
Clause 123 specifies that the water allocation is subject to the resource
operations plan and establishes a rule to resolve conflicts between the
allocation and the plan, for example, the resource operations plan prevails.
This provision recognises that the resource operations plan will be the
document that specifies most of the terms and conditions of the water
allocation.
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Water
Clause 123A provides that if a resource operations licence holder
considers security is needed to ensure payment of any outstanding water
storage and supply fees, the holder may require water users who benefit
from its services to provide, as a precondition to receiving service, a form of
security such as a reasonable monetary bond or letter of credit set at a
reasonable level.
Clause 124 deals with the consequences for water allocations of the
amendment of a resource operations plan. The chief executive may amend
a resource operations plan (clause 105), but it must be consistent with the
water resource plan approved by the Governor in Council under clause 50.
It is mandatory that the registrar amend records for water allocations on the
water allocation register in accordance with the amended resource operations
plan.
Clause 125 permits the registrar (after calling for any necessary
information or statutory declarations) to make necessary corrections to the
name of existing water entitlement holders when recording the granting of
water allocations. This will assist the registrar to ensure that water
allocations are correctly recorded in the name of the appropriate legal entity
entitled to the registration. The provision will permit the correction of any
existing anomalies in the names recorded in the current database held by the
Department in respect of licences under the Act.
Clause 126 specifies the details to be recorded in the water allocation
register in respect of water allocations. Subclause (1)(b) mentions the
volume of water expressed as a share of total water available and is an
entitlement subject to conditions such as availability of water in a particular
water year. Subclause (1)(c) mentions the location of the water allocation.
The location may be specified as a point, as an area, as a section of a
watercourse or in some other way. Purpose is required to assist with
monitoring of movement of water between sectors, for example, shifts in
agricultural water to urban water or vice versa. Every water allocation will
relate to a resource operations plan and water managed by infrastructure, for
example, a dam, will also refer to a resource operations licence and the
product supplied by the resource operations licence holder under that
resource operations licence, for example, high priority water. Where a
water allocation is not in relation to water managed by infrastructure, a
maximum rate at which water may be removed and the flow conditions of
the water at the location will be expressed as part of the water allocation.
52
Water
Subdivision 2--Dealings with water allocations
Clause 127 defines "change" for the purposes of dealings with water
allocations. Change refers to a reconfiguration of any element of a water
allocation that is expressed on the water allocation register. A change may
increase one element because of a simultaneous change to another element,
however, the overall benefit must not be increased. An example of a change
is where a water allocation is moved from one location to another location
downstream and as a result the volume is adjusted to reflect the fact that
further losses and other related factors need to be applied to that water. The
methodology for calculating adjustments will often be in the transfer rules
for a resource operations plan.
Clause 128 provides for transfers of or changes to a water allocations
where the transfer is proposed to be under transfer rules in a resource
operations plan.
Under subclause (4), if the application relates to a water allocation
managed under a resource operations licence, the application must be made
to the resource operations licence holder.
Under subclause (5), if the application relates to a water allocation other
than an allocation managed under a resource operations licence, the
application and any prescribed fee is to be given to the chief executive.
Either the resource operations licence holder or chief executive must then
assess the application against the transfer rules and either certify that the
proposed transfer or change is permitted under the transfer rules or refuse to
certify.
Under subclause (7), when the registrar receives a certificate confirming
the transfer or change is permitted under the transfer rules, the registrar
must record the transfer or change on the w a register.
The transfer or change is effective when the registrar records details of
the transfer or change in the water allocation register.
Clause 129 provides for transfers or changes other than under
clause 128. Clauses 129 to 134 specify the procedure to be followed in
respect of these transfers or changes.
Clause 130 permits the chief executive to require the applicant or any
submitter under clause 129 to give additional information, about the
application or a submission made.
53
Water
Clause 131 provides that a notice advising that an application has been
made under clause 129 must be published by the chief executive, and a copy
given to each local governments in the area. Publish means "Publish" for
the purposes of this clause means publication in a newspaper circulating
generally in the area and any other newspaper the Minister considers
appropriate and on the Department's website on the internet.
Clause 132 enables the chief executive to require that payment be made
by the applicant to correct the cost of researching and investigating an
application if it is likely that significant costs will be incurred for example
because further hydrologic modelling must be done to assess the
application. Subclause 2 provides that the chief executive must provide an
estimate of the likely costs to the applicant to enable the applicant to assess
whether it is worth proceeding with the application.
Clause 133 provides that the chief executive must approve the application
if the chief executive is satisfied it is compatible with environmental flow
objectives and water allocation security objectives, is in the public interest
and will not significantly affect consumptive users of water and the natural
ecosystem in an adverse way.
Clause 134 provides for the recording on the water allocations register of
details of the transfer or change by the registrar upon receipt of a certificate
and clause 128 or 134.
Clause 135 provides for the lease of a water allocation by a water
allocation holder. A lease may be recorded by the registrar as an interest in
the water allocation if the changes to the water allocation, for example to
location, that will result from the proposed lease would be permitted for a
transfer or change under the transfer rules. Subdivision 3 provides that
where there are no transfer rules, an application to record the lease may be
made following he requirements of clauses 129 to 134 inclusive.
Clause 136 provides for the transfer of a lease of a water allocation either
under the transfer rules in a resource operations plan or by following the
requirements for a transfer or change in clauses 129 to 134 inclusive.
Clause 137 provides for the forfeiture of a water allocation by the chief
executive where the holder of the water allocation has been convicted of an
offence against the Bill in certain circumstances. On forfeiture, the chief
executive must sell the water allocation by public auction, public ballot or
public tender as specified in the clause. The water allocation is forfeited but
not cancelled, so that its value is not lost for other interest holders in the
54
Water
allocation. Registered interest holders will receive part of the distribution of
the proceeds of sale, subject to the interests of those stated in the clause to
have higher priority to the distribution.
Clause 138 confirms that the Supreme Court has power to make orders
regarding water allocations granted, dealt with or recorded on the water
allocation register in consequence of a false or misleading representation or
declaration.
Clause 139 applies the priorities specified in clause 137(7) to the
distribution of the proceeds of forced sales instigated by the resource
operations licence holder, the chief executive or another person, for
example, a financier who has a power of sale under a mortgage document.
Division 5--Seasonal water assignments of water allocations
Clause 140 limits the application of the division to where a water
resource plan or resource operations plan specifically provides for seasonal
water assignments for water other than water managed under a resource
operations licence. Seasonal water assignments are not leases, which are
provided for under clauses 136 and 137.
Clause 141 permits a holder of a water allocation to apply to assign all or
part of the benefits of the water allocation to another person for a water year.
Clause 142 permits the chief executive to require that the applicant give
additional information or verify of information by statutory declaration
information given.
Clause 143 provides for deciding applications for seasonal water
assignments by the chief executive. If an application is inconsistent with
seasonal water assignment rules the chief executive must refuse the
application. If an application is approved, the chief executive by give the
proposed assignee a water permit for the water year. Water permits are
publicly searchable documents under clause 1010, but are not recorded on
the water allocations register. Subclause 7 provides that the assignment
does not need to be registered in order to be recognised as an interest at law.
This ensures that despite the seasonal water assignment not being part of the
water allocations register, it will not be defeated merely by registration of a
later interest on the water allocations register.
Clause 144 specifies that a water permit is subject to certain conditions.
55
Water
Clause 145 provides for the application of clause 243, regarding the
surrender of water permits, to seasonal water assignments.
Division 6--Registering interests and dealings for water allocations
Clause 146 establishes that there is a registrar of water allocations. The
registrar is to be employed under the Public Service Act 1996, and in acting
under the Bill is subject to the chief executive. The clause also contains
evidentiary provisions regarding the registrar's seal of office, and signature.
Clause 147 requires that the registrar keep a water allocations register.
Regulations may prescribe the location of offices of the registry and the
documents which may or may not be lodged. A person is taken to have
notice of an interest in a water allocation included in the register. The notice
deemed to have been given of interests on the register, may have
implications for other registers, statutory provisions or contractual
provisions with application to the interest held by the water allocation
holder. For example under clauses 280(1)(b) and 280(2)(b) of the
Corporations Law, the holder of a registered charge may lose priority to an
unregistered charge, where the unregistered charge is in fact registered (as a
mortgage) on the water allocation register.
Clause 148 provides for the form of the register.
Clause 149 specifies that all interests and dealings which may be
registered for land under the Land Title Act 1994 may be registered for
water under the Bill, except those excluded by virtue of clause 150(1)(e).
Subclause (3) recognises a notice given under clause 101 by an existing
interest holder in a water entitlement where the holder intends to take action
to have their interest recorded on the water allocations register. In effect this
subclause establishes a moratorium for 20 business days (4 weeks), during
which no dealings will be recorded. This will give the interest holder time
to obtain any necessary order (including an interim injunction) to either have
the interest recognised or prevent registration of further dealings on the
expiry of the 20 business day period pending the Court's final determination
of the matter.
Refer to clauses 121(6) and 121(7) for the procedure to be followed in
determining the priority for registration of existing interests in a water
entitlement at the time of registration of the water allocation.
56
Water
Subclause (5) provides that an instrument does not transfer or create an
interest at law until it is registered on the register. The clause is modelled on
section 181 of the Land Title Act 1994. The possibility of there being
interests off the register recognised in equity has not been excluded by this
provision, and the priorities of such interests as against registered interests
would be as established in the Courts. The registrar is required not to
register a transfer without a certificate providing the necessary
administrative approval under clauses 128 and 133.
Clause 150 specifies that the Land Title Act 1994 applies, other than the
provisions listed and the Land Title Regulation 1994, and establishes a rule
to resolve conflicts between the Bill and the Land Title Act 1994. The clause
also alters some of the terminology of the Land Title Act 1994 as adopted
into the Bill.
The modifications made to the Land Title Act 1994 provisions include the
exclusion of the provisions which are not appropriate for water allocations.
Provisions not applied include those in respect of easements, covenants and
profits a prendre. The paramountcy provision in s.184 of the Land Title Act
1994 has also been omitted, and related references to "indefeasibility" and
compensation excluded. Powers of attorney registered under the Land Title
Act 1994, are recognised under subclause (4) for the purposes of the water
allocation register.
Clause 151 provides for the application of other legislation which refers
to the Land Title Act 1994, being the Property Law Act 1974 and the Stamp
Act 1894. In respect of the Property Law Act 1974 a reference to the Land
Title Act 1994 is, if the context permits taken to be a reference to the Land
Title Act 1994 as applied by the Bill. References to land are similarly to be
taken as references to water allocations.
The reference to section 66A of the Stamp Act 1894 in this section means
that caveats registered on the water allocations register will be chargeable
with duty similarly to caveats registered over land.
The provisions of the Property Law Act 1974 regarding mortgages and
leases will therefore be applicable, to the extent that the context permits.
Further, in circumstances where water allocations are considered to be
personal property, other provisions of the Property Law Act 1974 will also
apply.
Clause 152 permits a person to search and obtain a copy of a water
allocation, and other instruments and information, at an office of the
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Water
department.
Clauses 153--166 not used. See footnote 1 at end of chapter 1.
PART 5--INTERIM ALLOCATION AND
MANAGEMENT ARRANGEMENTS
Division 1--Preliminary
Clause 167 sets out the purpose for chapter 2 part 5 which is to make
provision for how water is managed in that part of a catchment where water
is managed through infrastructure but a resource operations plan (that is, the
plan under which licences and interim water allocations are converted to
water allocations) has not been approved.
Division 2--Interim resource operations licences
Subdivision 1--Granting interim resource operations licences for
existing operations
Clause 168 provides that regulations may be made nominating the
entities required to apply for an interim resource operations licence.
A person who is nominated under the regulation must within 60 business
days (12 weeks) of the regulation being made apply for an interim resource
operations licence to continue to operate the water infrastructure or to
otherwise manage water.
Clause 169 provides that an application for an interim resource
operations licence must be made in an approved form and supported by
details of:
· The applicants proposed operating arrangements for any water
infrastructure;
· All persons who are supplied water by the applicant under water
58
Water
entitlements, including licences section 15 agreements and other
agreements under the Act;
· The applicant's proposal about the total interim water allocation
that should be managed under the interim resource operations
licence;
· The applicants proposal about the apportionment of the total
interim water allocations in the area;
· The applications proposal about water supply arrangements.
Clause 170 provides that in addition to the matters outlined in clause 169
the chief executive may require additional information and any additional
information may be required to be verified by a statutory declaration.
Clause 171 provides a process whereby all persons who are supplied
with water by the applicant and who are mentioned in clause 169 will be
provided an opportunity to make submissions on the applicant's proposal.
Clause 172 provides that the chief executive may invite the applicant and
all or any of the persons who's details are given to the chief executive under
section 169 to a conference to help decide the application. Notice of when
and where the conference is to be held must be provided all relevant
persons, however, if it is impracticable to give notice to all persons, the chief
executive may publish a notice about the conference. "Publish" for the
purposes of this clause means publication in a newspaper circulating
generally in the area and any other newspaper the chief executive considers
appropriate and on the Department's website on the internet.
Clause 173 provides that based on the applicant's proposal, written
submissions received and the views expressed at conferences the chief
executive must make a proposed decision on the interim operating
arrangements and the grant of interim water allocations.
Clause 174 provides that the chief executive's proposed decision will be
notified to the applicant and each entity who's details are supplied under
clause 169. All persons notified will be invited to make further
submissions.
Clause 175 provides that the chief executive, after considering any
submissions must grant an interim resource operations licence that may be
subject to conditions and must give the persons mentioned in clause 169
notice of the decision. The applicant and the persons mentioned in clause
169 may appeal against the decision.
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Water
Subdivision 2--Granting interim resource operations licences for
proposed operations
Clause 176 provides that where a process in a water resource plan makes
provision, an interim resource operations licence may be granted.
"Process" is defined in schedule 4 of the Bill.
Subdivision 3--Content and conditions of interim resource operations
licences
Clause 177 provides the contents that must be included in an interim
resource operations licence.
Clause 178 provides a nonexhaustive list of conditions that may be
included in an interim resource operations licence.
Subdivision 4--Amending interim resource operations licences on
application of licencee
Clause 179 provides that an interim resource operations licence holder
may apply to amend its interim resource operations licence.
Clause 180 provides that the chief executive may require additional
information about the application from the applicant or additional
information about the submission from the submitter. "Submitter" is
defined in schedule 4 of the bill.
Clause 181 provides that after the chief executive is satisfied an
application has been properly made and the applicant has provided
additional information requested, the chief executive must give the applicant
a notice to publish the application in the newspaper or newspapers stated by
the chief executive. It is the applicants' responsibility to arrange for
advertisement of the application and the applicant must provide proof of the
application the chief executive within 10 business days (2 weeks) after the
notice is published. Subclause 6 provides that the chief executive may also
send a copy of the notice to any entity the chief executive considers
appropriate.
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Water
Clause 182 sets out the matters that the chief executive must consider
when deciding applications for amendment of an interim resource
operations licence.
Clause 183 provides for the decision making in relation to an application
to amend and interim resource operations licence.
Subdivision 5--Amending interim resource operations licences by chief
executive
Clause 184 provides that the chief executive may amend and interim
resource operations licence if the chief executive is satisfied the interim
resource operations licence should be amended. Subclause 2 provides
limits on the chief executive discretion to exercise this power. The chief
executive must not increase the volume, rate or times when water may be
taken under the licence or increase the interference of the flow of water or
the location for which water may be taken or interfered with under the
licence. Any amendment required by the chief executive must not
significantly affect natural ecosystems, quality of water, water entitlement
holders, or water users who rely on beneficial flooding, in an adverse way.
Subclause 3 ensures that a resource operations licence holder is given an
opportunity to show cause prior to the chief executive making a decision
about the proposed amendment. Show cause requirements are set out in
clause 779 of the Bill.
Clause 185 provides for the chief executive to make a minor amendment
to correct a minor error in a resource operations licence or another change
that is not a change of substance, without regard to the limitations of the
chief executive discretion in clause 184.
Subdivision 6--Transferring and cancelling interim resource operations
licences
Clause 186 provides that an interim resource operations licence may be
transferred or cancelled in the same way as a resource operations licence
may be transferred or cancelled under part 4 division 3 of the bill.
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Water
Division 3--Interim water allocations
Subdivision 1--Interim water allocations managed through existing
water infrastructure
Clause 187 provides that where the chief executive grants an interim
resource operations licence the chief executive must also grant interim water
allocations in accordance with the decision. Subclause 2 provides that the
interim water allocation granted will replace any authorisation issued under
the Act that remains in force at the time the interim water allocation is
granted. An interim water allocation is similar to a water licence under
chapter 2 part 6 in that it relates to specified land. However, subclause 4
does not require that an interim water allocation held by an interim resource
operations licence holder, local government, water authority or other entity
prescribed under a regulation be attached to land. Although this will not
mean that these entities can transfer the interim water allocation they hold to
others, it will enable them to hold interim water allocation without being
land owners.
Clause 188 provides that the arrangements that a person had for the
supply of water at the time the interim water allocation was granted are
taken to be the supply arrangements for the supply of the interim water
allocation. This means that the grant of the interim water allocation does not
change existing supply arrangements.
Subdivision 2--Interim water allocations to be managed through new
infrastructure
Clause 189 provides that following granting of an interim resource
operations licence under chapter 2, part 5, division 2, subdivision 2, interim
water allocations must be granted in accordance with the process stated in
the water resource plan. An interim water allocation granted under this
clause attaches to the land of the grantee unless the grantee is an interim
resource operations licence holder, local government, water authority or
other entity prescribed under a regulation.
62
Water
Subdivision 3--Amending, renewing, transferring, forfeiting or
cancelling interim water allocations
Clause 190 provides that an interim water allocations may be amended,
renewed, transferred or cancelled in the same way as a water licence is
amended, renewed, transferred or cancelled under chapter 2 part 6 of the
Bill, except for transfers of interim water allocations by interim resource
operations licence holders which are dealt with under clause 191 and clause
192, and also transfers provided for under a regulation made under
clause 192A.
Clause 191 provides for applications by an interim resource operations
licence holder to transfer all or part of an interim water allocation. The
transfer must be in favour of either the owner of land upon which the water
will be used or a local government or a water authority or an entity
prescribed under a regulation.
Clause 192 provides for decision making about applications to transfer
interim water allocations by the chief executive.
Clause 192A provides that a regulation may be made in an area, such as
the Mareeba Dimbulah Water Supply Scheme area, for transfer of interim
water allocations from the land to what they attach to other land. The
provision will allow the transfer trial operating in the Mareeba Dimbulah
Water Supply Scheme to continue. Strict regulations will apply to any
transfers permitted prior to approval of a resource operations plan.
Clause 192B provides that an interim water allocation can be forfeited in
the same way that a water allocation can be forfeited.
Clauses 193--203 not used. See footnote 1 at end of chapter 1.
PART 6--WATER LICENCES AND PERMITS
Division 1--Preliminary
The water licensing and permitting processes provided in part 6 are
essentially a carry-over of the licensing and permitting processes from
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Water
part 4 of the Act. However, an essential difference is that where licences
under the Act authorise works such as pumps and bores, licences under the
Bill will authorise the taking of or interference with water. The works used
to take or interfere with water will be authorised separately as developments
under the Integrated Planning Act 1997.
The requirement for a person to hold a licence or permit to take, use or
interfere with water is subject to the provisions of chapter 2, part 2,
clause 12 of the Bill.
Clause 204 provides the power for the chief executive to issue water
licences for taking and interfering with the flow of water, and water permits
to take water.
Clause 205 specifies that the chief executive must make decisions under
part 6 in accordance with any water resource plan or resource operations
plan that is approved for the area to which the decision relates.
Division 2--Water licences
Subdivision 1--Granting water licences
Clause 206 defines who may apply for a water licence and the sources of
water in relation to which an application for a licence to take and use water,
or to interfere with water, may be made.
Subclause (1) provides for an owner of land, or the owners of two or
more contiguous parcels of land, to apply for a water licence to take water
and use the water on the land or to interfere with the flow of water on, under
or adjoining any of the land.
The intention of the provision for an application for a water licence to be
made by owners of contiguous land is to enable the operators of a common
enterprise to jointly hold a water licence to relate to land that is separately
owned, for example in the circumstances of a family enterprise.
Contiguous land includes land that is nearly touching, such as land separated
by a road reserve or a watercourse.
Subclause (2) clarifies that an application for a water licence to take water
may be made to take water from a watercourse, lake or spring on or
adjoining any of the land; or an aquifer under any of the land; or water
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Water
flowing across any of the land.
Subclause (3) makes provision for the owner or owners of land that does
not adjoin a watercourse, lake or spring, or that does not overlie an aquifer
to make application for a water licence to take water from that watercourse,
lake, spring or aquifer provided that all the owners of land between the
source of the water and the applicant's land agree to give the applicant a
registrable lease or easement over the intervening land to the extent
necessary to enable water to be accessed and to be delivered to the
applicant's land. This provision is similar to section 39 of the Act, although
it is more rigorous in requiring a registrable instrument. In this regard, the
provision is intended to overcome some of the difficulties that have been
experienced in relation to agreements under section 39.
Subclause (4) provides for a local government or a water authority to
apply for a water licence to take or interfere with water, even though the
local government or the water authority may not be the owner of any or all
of the land to which the licence would relate. This provision accommodates
circumstances such as town water supply where the land on which the water
is used is not owned by the entity taking the water. This subclause also
provides that resource operations licence holders and interim resource
operations licence holders may apply for water licences, for example, to
enable them to take unregulated water. Other entities prescribed under a
regulation may also apply for a water licence regardless of whether the
entity owns the land where the water will be used.
Subclause (5) clarifies that an application for a water licence must be
made to the chief executive in the approved form and establishes the
requirement that an application must contain sufficient information for the
application to be decided. The application must also be accompanied by the
prescribed fee.
Clause 207 enables the chief executive to require an applicant for a water
licence to give additional information about the application. It also enables
the chief executive to require a person who has made a submission about an
application to give additional information about the submission. The chief
executive may also require any information submitted to be verified by
statutory declaration. The chief executive may exercise the discretion to
require further information at any time prior to deciding the application.
Clause 208 specifies requirements relating to the publication of a notice
of an application for a water licence.
65
Water
Subclause (1) specifies that publication of a notice of an application may
proceed only if the chief executive is satisfied that the application has been
properly made and the applicant has provided any additional information
requested by the chief executive.
Subclause (2) requires the applicant to publish notice of an application in
the newspaper or newspapers, and within the time, specified by the chief
executive. However, the chief executive must provide the applicant with the
notice that is to be published. This arrangement differs from the
arrangement under the Act which requires the chief executive to publish
notice of an application. It is, however, consistent with the arrangement
under the Integrated Planning Act 1997 which obliges the applicant to
publish notice of an application for a development approval.
Subclause (3) clarifies that the mandatory requirement about the
publication of notice of applications does not apply to the particular
applications identified in clause 209.
Subclause (4) specifies the minimum information that is to be included in
the published notice of an application, including the specification of
requirements regarding submissions that may be made. There is no
limitation on who may make a submission on an application. This differs
from the arrangements under the Act which limits the right to object to
certain landowners whose land is located within a specified distance of the
land subject of the application.
Subclause (5) provides a minimum period of 30 business days (6 weeks)
that must be allowed following publication of the notice for submissions to
be made about an application.
Subclause (6) obliges the applicant to give the chief executive a copy of
the page of the newspaper containing the published notice within
10 business days (2 weeks) of publication. This provision is to ensure that
the notice is properly published and to enable the chief executive to track the
publication process.
Subclause (7) enables the chief executive to send a copy of the properly
published notice to any other entity that may have an interest in the
application. The clause also clarifies that the chief executive may proceed to
decide the application only following the expiry of the period allowed for
submissions.
Subclause (8) defines the meaning of the term "properly published" for
the purposes of Clause 208.
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Water
Clause 209 provides for the chief executive to decide particular licence
applications without publishing a notice of the application under clause 208.
Subclause (1) requires the chief executive to refuse an application for a
water licence without notice of the application being given if the granting of
the application would be inconsistent with a water resource plan or a
resource operations plan. This provision is intended to minimise the
decision period and administrative processes in those cases where the
statutory planning process directs that the application cannot be granted.
Subclause (2) provides also that the chief executive may decide an
application for a water licence to take underground water for domestic
purposes or for watering stock without notice of the application being
published. This provision is consistent with arrangements under the Act
which allow for applications for artesian and subartesian bores for stock and
domestic water supply purposes to be decided without publication of a
notice.
The provision to enable the chief executive to decide applications for
water licences to take water for stock and domestic water supply without
publishing a notice recognises the low volume and intensity of water use
involved and the fact that often applicants will have limited access to
alternative sources of water for these essential purposes. The provision
does not, however, oblige the chief executive to approve the application.
Clause 210 establishes the criteria which the chief executive must
consider when making a decision on an application for a water licence. The
criteria provides more specific definition of relevant matters for
consideration than is provided under the corresponding section of the Act.
Clause 211 defines the decisions that the chief executive is able to make
in relation to an application for a water licence and specifies the procedures
that the chief executive must follow once a decision is made.
Subclauses (1) and (2) in combination provide for the chief executive,
upon consideration, to approve an application; or approve an application
subject to conditions; or refuse an application. Where an application is
approved, it must be approved for a period.
Subclause (3) requires the chief executive to give notice of a decision on
an application to the applicant or, if subclause (4)(b) applies, to the
registered owner of the land, and to any persons who made a proper
submission on the application, within 30 days of making a decision.
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Water
Subclause (4) provides a period of 30 business days (6 weeks) within
which the chief executive must issue a water licence to the applicant when
an application is approved. This subclause also provides for the licence to
be issued to the registered owner of the land to which the application relates
if the applicant ceases to be the owner of the land after making the
application. While this provision would be most frequently used in the case
where the applicant sells the land, it is also relevant in circumstances where
land is transferred upon the death of the applicant or where an applicant
partnership is dissolved and one of the parties to the application becomes the
owner of the land.
Subclause (5) specifies that a licence takes effect from the day that the
applicant or the licencee is given an information notice under subclause (3).
This places beyond doubt the date from which a licensee may commence
taking or interfering with water under the licence.
Clause 212 enables the chief executive to issue a water licence without an
application if a water resource plan or a resource operations plan provides a
process for the future allocation of water in a plan area by water licence.
The intent of this clause is to enable water licences to be issued to authorise
the taking of water that has been allocated to a person under arrangements
specified in a water resource plan, for example by ballot. The provision is
analogous to provision made in section 90 of part 5 of the Act for the issue
of a licence to a person who has purchased a water entitlement as a
consequence of a specified process.
Subdivision 2--Contents and conditions of water licences
Clause 213 specifies the mandatory attributes of a water licence. The
licence must state the period for which the licence is issued and it must state
the water to which it relates and the location at which that water may be
taken or interfered with. The clause also provides generically for the
amendment, renewal, reinstatement, transfer, amalgamation, subdivision,
surrender and cancellation of a water licence although the specific processes
for dealing with these actions are established in the subsequent provisions of
subdivisions 3, 4 and 5 of Division 2. Very importantly, the clause further
specifies that a water licence for which application was made under
clause 206(1), or a licence granted under clause 212 to a person other than a
registered water service provider, a local government or a water authority,
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Water
attaches to land and must be held by the owner of land.
Clause 214 enables conditions to be applied to a licence and specifies,
without limiting the conditions that the chief executive may apply to any
particular licence, conditions that may be applied under which the licensee
may be required to do certain things in connection with the licence including
to provide and maintain alternative water supplies for other water
entitlement holders whose water supplies would be affected by activity
under the licence.
Clause 215 clarifies that water that is authorised to be taken under a water
licence that is attached to land may be used only on the land to which the
licence attaches.
The provisions in clauses 213 and 215 clarify the interest that water
licences attach and relate to particular land.
Subdivision 3--Amending water licences
Clause 216 makes provision for a licensee to apply for the amendment of
a licence at any time. An application made under this clause must be dealt
with as an application for a licence in the first instance under clause 206 and
is therefore subject to all the procedural requirements of such application,
including the publication of notice where required.
Clause 217 provides for the chief executive to amend an existing water
licence if the existing licence is inconsistent with a water resource plan or
resource operations plan, and provides the process that the chief executive
must follow in amending the licence.
Subclause (2) requires the chief executive to amend a licence that is
inconsistent with a water resource plan or a resource operations plan as soon
as possible after the plan is approved. The chief executive must advise the
licensee of the aspects of the licence that are inconsistent with the plan and
must issue an amended licence.
Subclause (3) specifies that a licence amended under this clause takes
effect from the day that the chief executive gives the licensee the amended
licence.
Clause 218(1) provides for a water licence to be amended at any time on
the initiative of the chief executive should it be considered necessary or
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Water
desirable to do so.
Subclause (2) limits the amendments that can be made to a water licence
on the initiative of the chief executive to amendments that do not increase
the licensee's access to water under the licence, including increasing the
volume of water that can be taken or increasing the area of land that can be
irrigated; or that do not increase the impact of the licence, on natural
ecosystems or other water users; or that do not change the location of the
activity authorised under the licence.
Subclause (3) sets out that if the chief executive considers that it is
necessary or desirable to amend a water licence, the licensee must be given a
show cause notice about the proposed amendment.
Subclauses (4), (5) and (6) deal with the decision that the chief executive
may make in relation to a proposed amendment to a water licence. If the
chief executive decides to amend the licence, the chief executive must give
the licensee an amended licence and an information notice about the decision
within 30 business days (6 weeks) of the decision. However, if the chief
executive decides not to amend the licence, a notice must be given to the
licensee advising that the licence will not be amended.
Subclause (7) specifies that an amended licence takes effect from the day
the licence is given to the licensee.
Clause 219 provides for the chief executive to take administrative action
to amend a licence to correct a minor error, or to make another change that
is not a substantial change to licence. It also enables the chief executive to
amend a licence in a way that is provided under the licence. An amendment
under this clause arises in limited circumstance and may be dealt with
without the need to comply with any of the other provisions that relate to the
amendment of a licence. Examples of amendments that would be intended
under this clause include: to record a change of name by marriage or to
include a new partner's name on the licence; to record a change in the
description of the land to which the licence attaches (but not a change of the
land).
Subdivision 4--Other dealings with water licences
Clause 220 deals with the renewal of water licences. This provision is
necessary because licences are issued for a period.
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Water
Subclause (1) requires a licensee to apply for the renewal of a licence
before the licence expires.
Subclause (2) specifies that the application must be made to the chief
executive in the approved form and accompanied by the prescribed fee.
Subclause (3) provides, where a licensee applies for the renewal of a
licence before the expiry date, for the licence to remain in force until the
applicant has been advised of the decision on the application or, where the
application is refused and the applicant has appealed against the decision,
until the appeal has been decided. This is an important provision that
ensures that the activity authorised under the expired licence may lawfully
continue, and the applicant's interests under the licence are not prejudiced,
pending a decision on the renewal application or on an appeal.
Subclauses (4) and (6) establish the options available to the chief
executive in making a decision on a renewal application. The provisions
enable the chief executive to approve an application to renew a licence; or to
approve an application subject to a variation of the licence; or to refuse an
application.
Subclause (5), however, expressly provides that, if the chief executive
decides to vary the licence in consequence of a renewal application, the
variation must not increase the licensee's access to water under the licence
including by increasing the volume of water that can be taken or increasing
the area of land that can be irrigated; or increase the impact of the licence on
natural ecosystems or other water users; or increase the interference with the
flow of water or change the location of the activity authorised under the
licence.
Subclause (7) establishes the procedures that the chief executive must
follow to notify the applicant of the decision on a renewal application.
Within 30 business days (6 weeks) of making the decision, the chief
executive must give the applicant an information notice about the decision
and, if the application is approved, must also issue a new licence to the
applicant, or if the applicant has ceased to be the owner of the relevant land,
to the registered owner of the land.
Subclause (8) provides that the renewed licence takes effect from the day
that the applicant or, if the applicant has ceased to be the owner of the land,
the registered owner, is given the licence.
Clause 221 makes provision for a licensee to apply to reinstate an expired
licence. This reinstatement provision provides the opportunity for a licensee
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Water
who has failed to apply for the renewal of a licence before its expiry to seek
the continuity of a licence. The provision effectively replaces the
discretionary arrangement provided in the Act under which the chief
executive could deal with a renewal application lodged up to four months
after the expiry of a licence. The provision is important in circumstances
where the limitations in a water resource plan or a resource operations plan
might prevent the licensee from obtaining a fresh licence, even though the
impact of the original licence was considered in the development of the plan.
The period during which a reinstatement application may be made by either
the licensee or if the licensee ceases to be an owner of the land another
owner of the land, is 6 weeks after the day the licence expires.
Subclause (4) an expired licence is automatically taken to be in force
again from the date an application for reinstatement is lodged with the chief
until a decision is made. After expiry of the former licence and prior to
making a reinstatement application any taking or interfering with water will
be without authority and will constitute an offence under the Bill.
Subclause (5) establishes procedural matters in relation to dealing with an
application to reinstate a licence. The decision options and procedures for
dealing with a reinstatement application are specified to be the same as for
the renewal of a licence under clause 220.
Clause 222 provides for a water licence to be transferred to another
owner of the land to which the licence relates. This provision would be
most commonly used in the context of the sale of land to which a licence
relates or in the change of occupancy of land under lease arrangements.
However, it can also be activated to transfer a licence from the registered
owner of the land to an occupier (for example, lessee etc) of the land where
the registered owner is moving off the land or where the registered owner
has acquired the licence under the default arrangement provided in
clause 192.
Subclause (1) enables the licensee of a water licence to apply to transfer
the licence to either another owner, or to an incoming owner, of the land to
which the licence relates.
Subclause (2) provides mandatory procedural requirements in relation to
the submission of an application to transfer a licence. The application must
contain sufficient information to enable the licence to be transferred and
include the consent of the transferor and transferee to the transfer.
Subclause (3) obliges the chief executive to replace the licence with a new
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Water
licence under the same terms and conditions that have the same effect as the
terms and conditions that applied to the previous licence. The only
substantive change reflected in the new licence would be the changed name
and address of the licensee, although the provisions are framed to allow
latitude for the chief executive to make administrative adjustments to the
licence. It is noted that the new licence must be issued to the transferee
within 30 business days (6 weeks) after the transfer application is made, or,
if the application relates to a person who will be the owner of the land,
within 30 business days (6 weeks) after the transferee confirms that the
transferee has become the owner of the land.
Clause 223 enables a regulation to be made to provide for the transfer of
all or part of the authority to take water under a water licence so that the
authority relates to other land. It is clear under the Bill that water licences
attach to land and it is intended that transfer of water entitlements to other
lands would generally occur only in relation to water allocations established
within water resource plan areas, and then only in accordance with transfer
rules established under resource operations plans. However, it is necessary
to preserve present arrangements under the Act that provide for the transfer,
under regulation, of water allocations held under licences until such time as
those allocations are converted to transferable water allocations under the
Bill. Furthermore, circumstances may arise where the transfer of water
licences in a particular area is appropriate in a planned and controlled way.
Because these circumstances will be limited and specific it is appropriate to
specify arrangements for each area on a case by case basis under a
regulation.
Clause 224 provides for the licensee or licensees of two or more licences
that attach to the same or contiguous land to amalgamate the licences into
one licence. This provision is intended to address the expediency and
operational efficiency priorities of common or joint operations, for example
as arise in family partnerships. The intent in limiting the amalgamation
option to licenses on contiguous land is to ensure that amalgamation is not
used as a mechanism to transfer licenses outside the provisions of
clause 223.
Subclause (2) provides requirements regarding the form of an application
that is made to amalgamate licences and the payment of fees in relation to
such application.
Subclause (3) specifies that an application for amalgamation of water
licences must be dealt with as an application for a new licence in the first
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Water
instance, that is, the application is to be dealt with as if it were a new
application under division 2, subdivisions 1 and 2 of the Bill. The
requirement to adopt the new application process recognises the potential for
local impacts that could arise as a consequence of the changed location from
which some of the water could be taken or interfered with and the
concentration of extraction or interference.
Clause 225(1) enables a licensee to apply to subdivide a water licence
into two or more licences to relate to the land to which the original licence
related.
Subclause (2) provides requirements regarding the form of an application
that is made to subdivide a licence and the payment of fees in relation to
such application.
Subclause (3) specifies that an application for subdivision of a water
licence must be dealt with as an application for new licences in the first
instance, that is, the application is to be dealt with under clauses 206 to 215
of the Bill. The requirement to adopt the new application process recognises
the potential for local impacts that could arise as a consequence of the
multiplication of locations from which some of the water could be taken.
Subclause (4) obliges that the chief executive to ensure that any licence or
licences issued as a consequence of an application to subdivide a licence
relate only to the land that the original land related. This provision is
important because it prevents subdivision arrangements from being use to
effectively transfer licence entitlements outside the provisions of clause 223.
Clause 226(1) makes provision for a licensee to surrender a water licence
by giving the chief executive a notice of surrender.
Subclause (2) clarifies both that the surrender of a licence is effective
from the date that the surrender notice is received by the chief executive and
that the surrender does not release the licensee from any obligations that the
licensee had in relation to works before the surrender.
Clause 227(1) enables the chief executive to cancel a water licence at any
time if circumstances warrant. This is a substantial power that has existed
in the Act and in earlier legislation. While the provision is exercised
infrequently and with care, it is a provision that is necessary to enable the
chief executive to take effective action in a range of changing circumstances
in which it might be no longer appropriate for a licence to continue.
Subclause (2) requires the chief executive, where it is proposed to cancel
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Water
a licence, to follow the process specified under clause 218 of the Bill for the
amendment of a licence. This process ensures that the licensee is given
notice of the chief executive's proposal to cancel the licence and has the
opportunity to make a submission to the chief executive in that regard.
Subdivision 5--Effects of land dealings on water licences
Clause 228 specifies the arrangements that apply in relation to a water
licence when the licensee ceases to be the owner of the land to which the
licence relates. The provision creates a default arrangement that establishes
responsibility for a licence when a licensee disposes of land to which the
licence relates and no arrangements have been effected to transfer the licence
to the new owner of the land. The provision overcomes difficulties that
have been experienced in identifying responsibility for licensed works and
activities in the absence of a similar provision in the Act. It is noted that the
framing of this provision recognises that the "owner" of the land under the
Bill includes an occupier and is not limited to the registered owner.
Subclauses (2) and (4) provide that either the transferee under a
section 222 transfer arrangement or if there is no transferee, the registered
owner of land are to become the new licensee if the original licensee ceases
to be an owner of the land to which the licence attaches.
Subclause (5) requires the registered owner to inform the chief executive,
within 30 business days (6 weeks) of becoming the licensee under
subclause (1), that the person who previously held the licence has ceased to
be the licensee. The intention of this provision is to enable the chief
executive to issue a licence to the registered proprietor at the earliest possible
time.
Subclause (6) obliges the chief executive to replace the licence with a new
licence under terms and conditions that have the same effect as the terms
and conditions that applied to the previous licence. The intention is that the
only change reflected in the new licence would be the changed name and
address of the licensee, although the provision allows latitude for the chief
executive to make administrative adjustments to the licence.
Clause 229 deals with the effect on a water licence of the disposal of part
of the land to which the licence is attached. The purpose of the provision is
to prevent confusion or dispute regarding the ownership of a licence where
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Water
part of the land to which it is attached is disposed of and the licensee has not
obtained the amendment or subdivision of the licence to reflect the land
arrangements before the disposal of part of the land. The provision is based
on a similar provision in the Act, but it is more comprehensive than the
latter in that it provides for the replacement of a licence that has expired as
an immediate consequence of the disposal of part of the relevant land. The
provision applies regardless of whether the relevant land is subdivided
before or after the issue of the licence and the circumstances that would
trigger the provision include not only the disposal of a subdivision (for
example, a part) of the land but also the disposal of all of the subdivisions
(parts) to separate owners. The provision would not be triggered where the
subdivided land was disposed of in total to the same owner.
Subclause (1) provides that a water licence expires if the registered owner
disposes of part of the land to which the licence relates.
Subclause (2) clarifies that the licence expires on the day that the
registered owner disposes of the part of the land.
Subclause (3) provides, however, for one or more of the subsequent
owners of the land to which the expired licence related to apply for one or
more licences to replace the licence that expired. This application must be
made within three months of the expiry of the original licence.
Subclause (4) provides requirements regarding the form of an application
that is made to replace a licence and the payment of fees in relation to such
application.
Subclause (5) provides, where a subsequent owner or owners apply for a
replacement licence or licences, that the original licence is taken to have been
in force from the time the application is made until the applicant has been
advised of the decision on the application or, where the application is
refused, until any appeal against the decision has been decided. This is an
important provision that ensures that any ongoing activity authorised under
the expired licence may lawfully continue, and the applicant's interests
under the licence are not prejudiced, pending a decision on the reinstatement
application.
Subclause (6) specifies that an application made to replace an expired
licence must be dealt with as an application made under clause 225, which
calls up clauses 206 to 214 and means in effect that the application must be
dealt with as an application for a licence in the first instance. The
requirement to adopt this process recognises the potential for local impacts
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that could arise as a consequence of any change in location from which all
or some of the water could be taken or interfered with. A decision about an
application for a replacement licence is not apellable.
Subclause (7) requires the chief executive to notify all the registered
owners of the land to which the expired licence related of the application.
This is in addition to the requirement to publish notice of the application
under clause 208.
Subclauses (8) and (9) specify that the notice that is to be given to the
registered owners must inform the registered owners that a submission may
be made regarding the application within a period that is not less than
30 business days (6 weeks) after the notice is given.
Division 3--Seasonal water assignment of water licences
Division 3 makes provision for the licensee of a water licence to assign,
under certain circumstances, the water that may be taken under the licence to
another person.
Clause 230 establishes the limits of application for division 3. The effect
of the clause is that the seasonal assignment of water authorised to be taken
under a water licence may occur only if a water resource plan, or the
resource operations plan that implements a water resource plan, allows for
seasonal water assignment or, where there is no water resource plan or
resource operations plan, a regulation allows for seasonal water assignment
and sets out the rules for such assignment. Accordingly, the seasonal
assignment of water under a water licence is contemplated only in very
limited and specific circumstances.
Clause 231(1) establishes the right of a licensee to make application to
assign the benefits of a water licence to another person for the water year in
which the application is made. This provision effectively limits the period
of the assignment to a maximum of one year.
Subclause (2) provides requirements regarding the form of an application
that is made to assign the benefits of a licence and the payment of fees in
relation to such application. The clause requires that the application be
supported by sufficient information for the chief executive to be able to
decide the application.
Clause 232 empowers the chief executive to request the applicant for a
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Water
seasonal water assignment to provide additional information to enable the
application to be decided.
Clause 233 deals with the decision that the chief executive may make on
an application for the seasonal assignment of water.
Subclause (1) provides that the chief executive must approve an
application, with or without conditions, if the application is in accordance
with the seasonal assignment rules that have been specified.
Subclause (2) specifies that the chief executive must refuse an application
for seasonal water assignment if the application is not in accordance with the
rules.
Subclause (3) requires the chief executive to give the applicant for
seasonal assignment an information notice as soon as possible after
deciding the application.
Subclause (4) requires the chief executive to give the assignee a water
permit for the water year as soon as possible after approving, with or
without conditions, an application for a water assignment. The water permit
provides the authority for the assignee to take the water that is assigned as a
consequence of the approval of an application.
Subclause (5) clarifies that a water assignment has effect from the day
that the information notice about the decision is given to the applicant.
Clause 234 restricts the licensee of a water licence from taking water
under licence to the extent of any seasonal assignment that has been
approved.
Clause 235 provides for a water permit that is issued to give effect to a
seasonal water assignment to be subject to the same conditions to which the
water licence is subject. This clause also provides for the permit to be
subject to any conditions prescribed under a regulation or that the chief
executive may impose having regard to the circumstances of a particular
permit.
Clause 236 clarifies that a permit issued to the assignee of a seasonal
water assignment is subject to the provisions of clauses 243, 244 and 246 of
division 4 of part 6 (Water Permits). Accordingly, a water permit issued
for a seasonal water assignment may be surrendered or cancelled and the
taking of water under the permit may be limited during periods of water
shortage.
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Division 4--Water permits
Clause 237(1) enables a person to apply for a water permit to take water
for an activity. It is noted that the provision does not require the applicant to
be the owner of land and, in specifying that water may be taken for an
activity, does not require that water taken be used on land.
Subclause (2) specifies, however, that the activity for which water is
proposed to be taken under a water permit must have a foreseeable
conclusion date. Therefore, while the provisions do not mandate the period
of a water permit, the expectation is that the taking of water would be of a
temporary nature and that the permit would be issued for the period of the
activity. Common examples of activities for which water would be taken
under a permit include infrastructure construction and mineral or petroleum
exploration.
Subclause (3) specifies that an application for a water permit must be
made to the chief executive in the approved form and establishes the
requirement that an application must contain sufficient information for the
application to be decided. The application must also be accompanied by the
prescribed fee.
Clause 238 enables the chief executive to request the applicant for a water
permit to provide further information about the application. The chief
executive may also require any information given in relation to the
application to be verified by statutory declaration.
Clause 239 provides the criteria which the chief executive must consider
in deciding an application for a water permit. The criteria are
comprehensive while providing clear direction to the chief executive as to
relevant matters for consideration.
Clause 240(1) and subclause (2) provide for the chief executive, upon
consideration, to grant an application for a water permit; or grant an
application subject to conditions; or refuse an application. If the application
is granted, it must be granted for a period that is stated in the permit.
Subclauses (3) and (4) establish the procedures that the chief executive
must follow to notify the applicant of the decision on an application for a
water permit. The chief executive must notify the applicant of the decision
on the application by an information notice given within 30 business days (6
weeks) of the decision and must, if the application is approved, with or
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Water
without conditions, also give the applicant a water permit within 30 business
days (6 weeks) of the decision.
Subclause (5) clarifies that a water permit has effect from the day that is
specified in the permit.
Clause 241 specifies the content of a water permit. The clause clarifies
that a permit relates to a particular location or locations and must be issued
for a specified activity and for a specified period. The clause further clarifies
that a permit may not be transferred, amended, renewed or suspended. The
ability to transfer, amend or renew a permit are not required since these
functions are readily advanced in effect by an application for a fresh permit.
Clause 242 provides for conditions to be applied to a water permit. The
conditions that are applied may be conditions that are prescribed under a
regulation or that the chief executive imposes for a particular permit.
Clause 243(1) makes provision for a permittee to surrender a water
permit by giving the chief executive a notice of surrender.
Subclause (2) clarifies both that the surrender of a permit is effective
from the date that the surrender notice is received by the chief executive and
that the surrender does not release the permittee from any obligations that
the permittee had in relation to works before the surrender.
Clause 244(1) enables the chief executive to cancel a water permit at any
time if circumstances warrant. This is a substantial power that has existed
in the Act and which is exercised infrequently and with care. The power is
necessary to enable the chief executive to deal with circumstances that might
arise under which it is no longer appropriate for the permit to continue.
Subclause (2) requires the chief executive, where it is proposed to cancel
a permit, to follow the process specified under clause 218 of the Bill for the
amendment of a licence. This process ensures that the permittee has the
opportunity to make a submission on the chief executive's proposal to
cancel the permit.
Division 5--General
Clause 245(1) provides for a license or permittee to apply to the chief
executive for a replacement document if a water licence or a water permit
has been lost or destroyed.
Subclause (2) provides requirements regarding the form of an application
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Water
that is made to the chief executive to replace a water licence or permit and
the payment of fees in relation to such applications.
Subclause (3) requires the chief executive to issue a replacement licence
or permit if the applicant complies with the requirements in respect of the
application established under subclause (2).
Clause 246 provides for the chief executive to exercise discretion to limit
the amount of water that may be taken under water licences and water
permits if there is a shortage of water. This provision is carried across from
the Act. It is a provision that has been used frequently during local seasonal
water shortages or drought to ensure equitable sharing of diminished water
supplies and to maintain the availability of water for high priority uses.
Subclause (1) specifies that a limitation on the amount of water that can
be taken is invoked by a notice published by the chief executive. It is noted
that a notice for the purposes of this clause is published by a notice given to
an affected licensee or permittee or in a newspaper circulating in the relevant
area.
Subclause (2) enables a limitation to be established by limiting the times
when water may be taken, the purposes for which water may be taken or the
quantity of water may be taken. The detail of the limitation would be given
in the notice published in each case. The chief executive is not limited as to
the extent of the limitation that can be applied; that is, the limitation may
extend to a total prohibition on taking water from the subject source.
Subclause (3) provides that a limitation on taking water extends for the
period specified in the published notice or, if there is no period specified in
the notice, until the chief executive publishes a notice withdrawing the first
notice.
Subclause (4) creates an offence for a person to contravene a notice. The
maximum penalty for the offence is substantial to reflect the impact that
taking water during a period of shortage, other than in accordance with a
notice, could have.
Clauses 247--257 not used. See footnote at end of chapter 1.
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PART 7--CATCHMENT AREAS
The purpose of this part is to provide for the designation of areas of land
in order to control land use activities on those areas that may have an
adverse impact on water quality in a water storage, lake or groundwater
area. It carries over similar powers that exist in the Act, and mirror
provisions that existed in other Acts such as the Gladstone Area Water
Board Act 1984.
Clause 258 provides a regulation may be made to declare an area as a
catchment area for the purposes of preserving water quality.
Clause 259 deals with regulating land use in a catchment area.
Subclause (1) provides that a regulation may regulate the use of land in
the catchment area. This allows certain land uses and practices to be
prohibited or conditioned where they are likely to cause water quality
degradation of downstream water bodies or groundwater recharge areas.
Examples of such land uses and practices are non-perennial cropping,
non-sewered urban development, and the application of nutrients, pesticides
and other toxicants to crops. The clause also provides that a regulation may
regulate the construction and use of buildings and structures on that land.
This covers the establishment of things such as feedlots, piggeries, septic
systems and other features that will discharge significant quantities and
densities of nutrients or other contaminants.
Subclause (2) provides that a regulation made under this part overrides
any planning scheme or local law developed by a local government under
the Integrated Planning Act 1997. This provision is to remove any doubt
where there may be conflicting requirements on land use, buildings or
structures.
Subclause (3) provides that a development approval under the Integrated
Planning Act 1997 cannot override a requirement of a regulation made
under this part. The provisions of subclauses (2) and (3) recognise that
regional or State water quality interests represented by a regulation made
under this part exceed the interests of a local government. Also the power
can provide over-arching consistency across adjoining local governments
where the catchment area is within more than one local government area.
Subclause (4) provides that a regulation made under this part does not
limit powers made under this Bill or other Acts to protect water quality
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within the catchment area. There may be a number of means for protecting
water quality in a water body or groundwater area and these means should
not be limited by the requirements of a single regulation.
Clauses 260--265 not used. See footnote at end of chapter 1.
PART 8--RIVERINE PROTECTION
This part brings into the Bill the existing provisions of division 5 of
part 4 of the Act-- "Protecting and improving the physical integrity of
watercourses". The title is amended for simplicity and to reflect common
reference to the provisions. Minor amendments to the provisions have been
made as required for consistency within the framework of the Bill.
However, there is no substantial amendment to the provisions, so that the
practical effect remains the same as originally enacted.
Division 1--Granting permits for destroying vegetation, excavating or
placing fill in a watercourse, lake or spring
Clause 266 specifies the activities for which a permit must be obtained
and also specifies who may apply for a permit. The clause also deals with
procedural matters concerning applications for permits. Permits must be
sought for the destruction of vegetation, the excavation or the placing of fill.
Clause 267 empowers the chief executive to request the applicant for a
permit to destroy, excavate or fill to provide additional information,
including a statement of environmental effects if deemed necessary, to
enable the application to be decided.
Clause 268 specifies the matters to be considered by the chief executive
in deciding whether to issue a permit. Matters include the likely effects on
the physical stability and water quality, cumulative effects on the whole
stream system, the quantity, location and timing of the activity, and the type
of material or vegetation to be disturbed.
Clause 269 requires the chief executive to issue a permit, with or without
conditions, if the application is approved. The permit must state the time
period for the permit. Decisions regarding permits are appealable by an
applicant or permittee to the Land Court. Such appeals were previously to
the Magistrates Court under the Act.
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Division 2--Dealing with permits to destroy vegetation, excavate or place
fill in a watercourse, lake or spring
Clause 270 deals with the cancellation and amendment of permits. The
clause provides the grounds for cancellation and amendment, including
non-compliance with permit conditions or the impacts of the activity being
greater than was anticipated when the permit was issued. Prior to making a
decision, the chief executive must ask the permittee to show cause why the
permit should not be amended or cancelled.
Clause 271 deals with the procedure that the chief executive must follow
in making a decision to cancel or amend a permit. The permittee is to be
notified of the decision and, if the decision was to amend, be issued with an
amended permit.
Clause 272 provides that, in exceptional circumstances, the chief
executive may give a permit holder a written notice that immediately
suspends the permit. The suspension is effective from the date the notice is
given to the permittee. An offence is also created for non-compliance with a
suspension notice. The chief executive must withdraw the suspension if
satisfied that the suspension should no longer continue.
Division 3--Notices
Clause 273 provides for the chief executive, in certain circumstances, to
give written notice requiring the owner or occupier of any land to take
specified action in relation to vegetation, litter, refuse or other matter on the
land. Circumstances include where the matter has or is likely to enter a
watercourse, lake or spring and significantly cause obstruction of the water
flow, disturbance of the physical integrity, or reduction of the water quality.
The notice is a compliance notice and so provides the chief executive scope,
if the notice is not complied with, to undertake the specified action and to
recover costs. Also a compliance notice can be used to stop and/or reverse
an unauthorised activity, as previously covered in section 76 of the Act.
Clauses 274--278 not used. See footnote at end of chapter 1.
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PART 9--QUARRY MATERIALS
Division 1--Preliminary
Clause 279 clarifies the State's ownership of certain quarry materials.
Such resources (within watercourses or lakes) are situated on State lands
and on those freeholded State lands where the quarry materials have been
reserved in the deed of grant. Being a State resource, these quarry materials
attract a royalty when removed. This is the only distinction from general
quarry materials, ie all quarry materials are treated the same in terms of
allocation and management arrangements. This clause also clarifies the
chief executive's control of all quarry materials.
Division 2--Granting and selling allocations of quarry material
Clause 280 specifies the process for applying for a quarry material
allocation.
Clause 281 provides that the chief executive may ask for additional
information to support an application or for information provided to be
verified or for a contribution to be paid toward the cost of investigating the
application. An application will lapse if the applicant does not provide
requested information, verification or contribution within the time set.
Clause 282 provides specific criteria by which the chief executive must
consider an application for allocation. These include the likely impact of
extracting the allocated material on the physical integrity of the watercourse
or lake, on the condition of the watercourse or lake, on the supply of
sediments to estuaries and the sea, and on the rights of existing allocation
holders. Overall consideration is on the long term sustainable use of the
watercourse or lake.
The chief executive no longer needs to seek the views of the holder of a
State lease when considering an application for allocation. This matter is
now a pre-condition for an application under the Integrated Planning Act
1997 to take quarry material, for example, the applicant will need to secure
the leaseholder's consent as a pre-requisite for a valid development
application. This requirement will apply to all applicants, including local
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governments and State agencies. If the applicant cannot obtain the lessee's
consent, the matter is to be resolved by a Magistrate (see clause 734).
On other State-owned lands, the State will continue to exercise its right to
provide or withhold its owner's consent to such an application, based on
whether or not the proposal will be a suitable use for the land. Similarly,
landholder consent for the taking of quarry material not owned by the State
is now a matter for the Integrated Planning Act 1997.
The chief executive no longer needs to seek the consent of the Minister
administering the Mineral Resources Act 1989 in regard to lands subject of
a mining tenement or licence when considering an application for allocation
as this matter is covered under the Integrated Planning Act 1997 as part of
the authority to take quarry material. The Department of Mines and Energy
will be included as a concurrence agency for the Integrated Planning Act
1997 applications in such circumstances. This will allow the Department to
consider the possible impacts of the application on existing mines and to
either reject the application or to impose conditions. The established mine
may be adversely affected by the proposed quarry material operation either
directly (eg, possibly removing mineral-bearing sediments from an alluvial
mining lease in the watercourse or lake) or indirectly (eg, competing for
quarry material resources which are required to construct or maintain nearby
mine infrastructure such as roads, etc).
It is no longer necessary to clarify the situation where there is an
inconsistency between the terms of a quarry material permit and a local law
or other subordinate legislation of a local government as all operational
requirements will now be coordinated under the Integrated Planning Act
1997. Also an allocation notice will not authorise the taking of quarry
material so there is no potential for the terms of an allocation notice to
conflict with the operation of local government local laws.
Clause 283 specifies the process for the chief executive to decide an
application. The applicant is to be notified of the decision and, if the
application was granted, be issued with an allocation notice, with or without
conditions. The maximum term for an allocation has been extended from 3
years to 5 years, allowing larger operations to have greater resource security
on which to base investment. There remains no appeal against this decision.
Clause 284 allows the chief executive to sell an allocation of State quarry
material by auction or tender. The chief executive must consider the criteria
given in section 282. An allocation notice must be given to the buyer.
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Division 3--Content and conditions of allocation notices
Clause 285 requires an allocation notice must state the quantity of an
allocation and the maximum rate of extracting the quarry material.
Clause 286 provides that an allocation notice is subject to conditions,
including the need for the allocation holder to submit monthly returns on
material extracted.
Clause 287 provides for the imposition of a condition that requires the
allocation holder to give financial assurance to the chief executive in regard
to the allocation. The assurance may be in a form and for an amount
decided by the chief executive and will continue in force until all conditions
of the allocation notice have been with satisfactorily. In essence the
assurance is retained to meet the cost of any mitigation or stream protection
works required. For example, where the taking of the allocated quarry
material may increase the risk of short-term damage to the watercourse or
any infrastructure in that reach of the watercourse (such as a bridge or pipe
crossing), the allocation notice may require the holder to undertake certain
works to protect these features before the quarry operation begins. In
addition, it is expected that the development permit issued under the
Integrated Planning Act 1997 for the taking of the quarry material will also
be subject to separate security arrangements to cover compliance with the
terms of that authority, particularly rehabilitation requirements. Security
may take the form of a deposit, a bond, or other suitable arrangement such
as an insurance policy.
Division 4--Dealings with allocations of quarry material
Clause 288 provides for the voluntary transfer of all or part of an
allocation from the holder to another person. The chief executive may effect
the transfer if the chief executive is satisfied that the transfer would not alter
the original decision to grant the allocation, for example, the overall benefit
of the parts of the allocation do not exceed the benefit of the original
allocation. If the whole allocation is to be transferred, there is no reason for
the chief executive to reject the transfer. If part of the allocation is to be
transferred, the chief executive may amend or reject the transfer if it does
not meet the criteria on which the original allocation was granted. Parts of
the allocation that may be transferred include the quantity of material that
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can be removed, the rate at which the material can be removed, and the time
over which the material can be removed. The applicant (allocation holder)
may appeal against the chief executive's decision in the Land Court. To
effect the transfer, new allocation notices will be issued.
Clause 289 provides for the voluntary renewal of an allocation.
Currently quarry material permits are limited to 3-year maximum terms and
are not renewable, providing little security for operators, particularly large
businesses. By increasing the maximum term to 5 years (see clause 283)
and allowing renewal of the allocation, operators will be able to better plan
and manage their quarry operation. In assessing the application to renew,
the chief executive must consider the criteria on which the original allocation
was granted. If the allocation is renewed, it can be varied if the chief
executive believes such variations are necessary to ensure the long term
sustainable use of the watercourse or lake. The applicant can appeal against
the decision in the Land Court.
Clause 290 provides for the amendment, suspension or cancellation of an
allocation of quarry material in response to an unforseen change in the
condition of the watercourse or lake (such as after a large flood event which
removes most of the available material) where continuation of the quarry
operation would cause unacceptable damage to the watercourse or lake.
There is also scope for the allocation to be amended, suspended or cancelled
if the allocation was granted in error or if the allocation holder fails to
comply with the conditions of the allocation notice. The chief executive
cannot increase the benefit of the allocation notice under this provision. The
chief executive must invite the holder of an allocation to show cause why
the allocation should not be amended, suspended or cancelled.
Clause 291 specifies the process for the chief executive to decide whether
to amend, suspend or cancel an allocation notice. The chief executive must
consider any valid show cause submission or representation made. If the
chief executive decides to amend, suspend or cancel the allocation notice, the
allocation holder is to be notified of the decision and, if the allocation notice
is amended, be issued with an amended allocation notice. The amendment,
suspension or cancellation takes effect from when the allocation holder is
given notice of the decision. A suspension does not extend the original
expiry date of the allocation notice. The allocation holder may appeal the
decision in the Land Court.
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Division 5--General
Clause 292 provides that the holder of an allocation over State quarry
material is required to pay a royalty or, where the allocation is sold, the sale
price for the material removed. The royalty, which is prescribed by
regulation, presently provides rates for material taken for local government
uses, for State uses, and for other uses. Failure to pay the royalty or sale
price is an offence and outstanding amounts can be recovered as a debt to
the State.
Clauses 293--298 not used. See footnote 2 at end of chapter 1.
PART 10--WATER BORE DRILLERS
Division 1--Granting Water Bore Driller's Licences
Clause 299 provides that an individual person (not corporation or other
legal entity) may apply for a water bore driller's licence.
Applications are to be made to the chief executive in the approved form.
The approved form will include all application forms, interview sheets and
internal examinations as approved by the chief executive and noted in the
gazette.
Water bore drillers are to be defined by class. The class of driller relates
to the nature and type of aquifer system in which a driller may operate and
the skill level required.
Classes of bore driller's licence--
Class 1 licence: A driller with this licence is restricted to drilling
operations in non-flowing (sub-artesian) single aquifer
systems.
Class 2 licence: A driller with this licence in addition to operating in
class 1 licence conditions is permitted to engage in
drilling operations in a non-flowing (sub-artesian)
aquifer systems.
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Class 3 licence: A driller with this licence in addition to operating in
class 1 and class 2 licence conditions, is permitted to
engage in drilling operations in flowing (artesian)
aquifer systems.
Specific equipment authorised for use by a licensed water bore driller will
also be endorsed on the licence. Endorsements will relate to the drilling and
construction equipment for which the licensed water bore driller has proven
proficiency.
Endorsements on bore driller's licence--
Cable Tool: This endorsement permits drilling operations using
cable tools or cable percussion drilling methods.
Auger: This endorsement permits drilling operations using
bucket auger, hollow stem and solid stem auger
techniques.
Rotary air: This endorsement permits drilling operations which
use rotary drilling methods with air or foam as the
drilling fluid. This endorsement includes the use of
down hole hammers.
Rotary mud: This endorsement permits drilling operations which
use rotary drilling methods with water or drilling
fluids based on water.
A person will be entitled to a licence if the chief executive is satisfied that
the person has successfully completed examinations, interviews and met
other qualification and experience criteria approved by the chief executive
for a particular licence class and drilling equipment endorsement.
Details of classes, endorsements, minimum qualification and experience
standards, mutual recognition of interstate licences and fees will be set out in
a bore drillers regulation.
Clause 300 provides that the chief executive may require an applicant to
provide additional information to assist the chief executive to make a
decision. Requests for further information are limited to relevant
information about the applicant's experience or history in the water bore
drilling business. Information about any prior convictions of an offence
relevant to water bore drilling or about previous cancellation or suspension
of a similar licence would be reasonable for the purposes of this clause.
Information about an applicant's general criminal history would not be
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relevant. If the applicant fails to comply with the request, without a
reasonable excuse, the application will lapse.
The chief executive may require that the correctness of any information
provided be sworn before a Justice of the Peace in statutory declaration
form. This requirement is not mandatory and where it is impractical or not
considered necessary, information may be supplied in a form that is not
verified by statutory declaration.
Clause 301 provides that the chief executive is required to decide an
application. If the chief executive approves an application, a driller's licence
showing the class, any endorsements and any conditions must be given to
the applicant. The licence is valid for 5 years. If the chief executive grants a
licence that is different to the application received, the applicant must also be
notified of the decision. This may occur where a person applies for a certain
class or endorsement but is not adequately qualified. Rather than require a
fresh application with further fees, the chief executive can grant a licence
based on the person's qualifications and experience.
The applicant can appeal in a Magistrates Court any decision of the chief
executive in regard to a driller's licence. Prior to lodging an appeal, the
applicant must make application for an internal review. This process
involves a review of the original decision by an officer of equal or greater
authority than the original decision maker.
Clause 302 provides that specific conditions can be placed on an
individual water bore driller's licence. This will enable the chief executive to
restrict licensed water bore drillers in relation to specific water bore drilling
or construction activities not adequately covered by the generic licence
classes or endorsements. Examples of conditions include: restrictions in
relation to geographical areas, aquifer types, aquifer depth, aquifer diameter,
bucket auger only, and non-contaminated sites only.
All driller's licences will be required to include any condition specified by
regulation. One such condition is likely to be compliance with minimum
standards such as, for example, Minimum Construction Requirements for
Water Bores in Australia (ARMCANZ, 1997). This document defines the
minimum standards applying to construction, modification, repairing and
decommissioning of all water bores.
If special restrictions are to apply to a water bore driller's licence in
particular areas those restrictions must be referred to separately on the
licence. For example, where artesian bores must be constructed to comply
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with the Specifications for construction, reconditioning or plugging of bores
tapping aquifers of the Great Artesian Basin in Queensland this condition
may be referred to on the driller's licence.
Alternatively, a code setting out conditions applying to construction of
bores may be incorporated as a condition of Integrated Planning Act 1997
development assessment.
Clause 303 provides that if an application is refused the chief executive
must, within 30 business days (6 weeks), notify the applicant of the
decision which is appealable.
Division 2--Dealings with water bore driller's licences
Clause 304 provides that the holder of a driller's licence may apply to
upgrade or otherwise amend his or her licence at any time. The process for
application to amend or upgrade is the same as the original application
process outlined in division 1.
This provision enables a driller who gains additional qualifications to
apply to have the class upgraded or to have endorsements added to his or
her licence during the licence period (before it is due for renewal).
The chief executive may approve, approve with conditions or refuse an
application to amend within 30 business days (6 weeks). By way of
example, the chief executive may decide to refuse an application to upgrade
a licence if:
· The licensee is not eligible for the class of licence or the licence
upgrading applied for;
· The licensee does not have sufficient drilling and/or bore
construction experience;
· The licensee has not successfully completed all driller's licence
application requirements for a particular class or endorsement;
· Reports by referees or alleged regulatory offence matters have not
been resolved;
· Consumer complaints about the driller have not been resolved;
· The licensee has provided false or incorrect information in
support of his or her application.
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Clause 305 provides that the chief executive may amend a licence if the
chief executive is satisfied the class or endorsements or conditions require
amendment because the licensee's competence is considered to have
diminished since the time the driller's licence was granted.
Prior to amending the licence the chief executive must give the licensee a
written notice, called a show cause notice (see section 626), asking the
licensee to show cause why the licence should not be amended. The notice
must state the proposed amendment and grounds for the amendment,
outline the facts and circumstances that form the basis of the grounds, and
must invite the licensee to make a submission within a specified time, of not
less than 30 business days (6 weeks), to a specified place.
Clause 306 provides that the chief executive may amend the licence if,
after considering all submissions made within the specified time, the chief
executive still believes that the licence should be amended in the manner
specified in the show cause notice.
If the chief executive decides to amend the licence, the chief executive
must give the licensee a written notice, called an information notice,
stating--
(a) That the licence will be amended as specified in the show cause
notice;
(b) The reason for the decision; and
(c) That the licensee may appeal against the amendment of the licence
within 30 business days (6 weeks) after the notice is given.
If the chief executive and licensee agree to an alternative amendment to
the licence, the agreement must be recorded in writing and signed by both
parties. The chief executive may amend the licence in accordance with the
agreed alternative without providing a further show cause notice. The chief
executive must however provide notice that the licence is to be amended in
accordance with the written agreement.
If the chief executive amends a licence the chief executive must give the
licensee an amended licence within 30 business days (6 weeks). The
amended licence takes effect from the day it is given to the licensee. There
will be no compensation in relation to the amendment of a licence.
If the chief executive decides to not proceed with amending the licence,
the licensee is to be notified of the decision.
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Clause 307 provides that minor changes may be made to a water bore
driller's licence without the need to give a show cause notice and without
appeal. Any change amounting to a diminution of a water bore driller's
licence would be beyond the scope of a minor change.
This intention is that this provision be used to correct clerical mistakes or
to make standard modifications to all driller's licences.
Clause 308 provides that a licensee may apply, using the approved form,
to the chief executive for the renewal of a licence before the licence expires.
If an application for renewal of a licence is made, the existing licence
remains in force until the licensee is notified of the chief executive's
decision in relation to the application. The licensee must be given an
information notice within 30 business days (6 weeks) of the decision.
Applications for renewal may be approved, approved subject to variation
of the class, endorsements or conditions, or refused. The decision may be
appealed in the Magistrates Court. There will be no compensation in
relation to the refusal to renew a licence.
If the renewal is approved, with or without variations to the class,
endorsements or conditions, the chief executive must issue a new licence
within 30 business days (6 weeks) from that date.
If a licensed water bore driller does not renew his or her license prior to
its expiry, the person cannot operate as a driller until a new license has been
issued. A driller who allows his or her license to expire must apply under
section 299 for a new license and pay the relevant application fee.
Clause 309 provides that the chief executive may suspend a driller's
licence for a particular period if the chief executive is satisfied or believes on
reasonable grounds that any of the following have occurred:
· The licensee has been convicted of an offence against the Bill or a
relevant interstate law; or
· The licensee has carried out unauthorised water bore activities; or
· The licensee has failed to comply with conditions or
endorsements on the licence; or
· The licensee has failed to keep suitable records in the approved
form.
The licensee must be given an opportunity to show cause why the licence
should not be suspended. After considering properly made submissions,
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the chief executive must make a decision and give the licensee an
information notice regarding the decision. If the chief executive suspends
the licence, the suspension is effective from the day the information notice is
given to the licensee. The licensee may appeal against the suspension
decision. Suspension of a licence does not give rise to compensation.
An `interstate law' is defined in the Bill dictionary to mean a law of a
State (including a law that has been repealed) regulating the taking or using
of water or interfering with the groundwater resource. Hence a drilling
offence committed in another State will impact on the driller's Queensland
licence.
Clause 310 provides that the chief executive may cancel a driller's licence
if the chief executive is satisfied or believes on reasonable grounds that any
of the following have occurred:
· The licence was issued or renewed or amended in error or as a
consequence of a false or misleading representation or declaration
made in writing or verbally; or
· The licensee has been convicted of an offence against the Bill or a
relevant interstate law; or
· The licensee has carried out unauthorised water bore drilling
activities; or
· The licensee has failed to comply with conditions or
endorsements on the licence.
The licensee must be given an opportunity to show cause why the licence
should not be cancelled. After considering properly made submissions, the
chief executive must make a decision and give the licensee a notice
regarding the decision. If the chief executive cancels the licence, the licence
is cancelled as of the day that the notice is given. The licensee may appeal
against the cancellation decision. Cancellation does not give rise to
compensation.
Division 3--General
Clause 311 provides that a licensed driller is required to produce his or
her licence upon the request of an authorised officer in circumstances where
the authorised officer has information about or reasonably suspects that the
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driller is carrying out, or has just carried out, a water bore drilling activity in
an area. The authorised officer must warn the driller that it is an offence to
fail to produce a licence unless the driller has a reasonable excuse.
The purpose of this `on the spot production of a licence' provision is to
assist authorised officers with enforcement of the regulations applicable to
water bore drillers. Although the drilling community is quite familiar with
one another, drillers may move to other areas and in some cases interstate
drillers may seek to operate in Queensland. In order to carry out water bore
drilling in Queensland, a driller must have a Queensland driller's licence.
To enable efficient processing of licence checks, particularly as the
locations of many drilling activities are in remote areas, drillers are required
to keep photographic water bore drilling licences on their person while
engaging in activities or supervising activities for which a licence is
required.
However individuals carrying out an activity authorised under the
Petroleum Act 1923 or the Mineral Resources Act 1989, if that activity does
not result in a functional water supply bore, are exempt from this provision.
Such drillers are not required to hold a water bore driller's licence.
It is an offence to fail to produce a valid licence when requested, without
a reasonable excuse. The maximum penalty for failing to produce a valid
licence is 50 penalty units ($3750).
Clause 312 provides that if a drilling licence is suspended or cancelled,
the licensee must return the licence within 15 business days (3 weeks) of
date of notice of suspension or cancellation . It is an offence to fail to return
a suspended on cancelled licence within the time period provided, without a
reasonable excuse.
The chief executive must return to the licensee a suspended licence once
the period of suspension ends.
Clause 313 provides that information to be obtained and recorded by a
water bore driller in relation to the activities the licensee carries out in
Queensland will be prescribed by regulation. Specific forms approved by
the chief executive will also be made available to assist water bore drillers
with record keeping requirements.
A water bore driller must keep information about a borehole as the hole
is being drilled and then record the information in the approved form. It is
not acceptable that information be written up when the licence holder returns
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to his or her office after drilling a number of bores.
Completed forms must be forwarded to the chief executive within
30 business days (6 weeks) of the completion of the borehole.
Clause 314 provides for the chief executive to issue a replacement licence
if a driller's licence is lost or destroyed. Drillers must apply for the
replacement including any prescribed fees.
Clauses 315--325 not used. See footnote 2 at end of chapter 1.
PART 11--OPERATIONS LICENCE
Division 1--Preliminary
The purpose of part 11 is to provide a system for control of the taking of
water as a single operation by a person as an agent for two or more water
entitlement holders.
Clause 326 provides that the chief executive may issue an operations
licence for the taking of water as a single operation by a person as an agent
for two or more water entitlement holders. The entitlement may be either a
water allocation or a water licence. The operations licence must state the
water entitlements that are to be supplied under the operations licence and
the total volume that may be taken and the rates and times that the water
may be taken. The volumes, rates and times will be a consolidation of the
volumes, rates and times that apply to the related water entitlements. The
operations licence may be transferred, amended, suspended or cancelled.
Clause 327 provides that an operations licence is not required in respect
of water allocations managed under a resource operations licence. Resource
operations licence holders will be accountable for water supplied to
customers whether the customers take the water themselves or whether it is
taken for them by an agent.
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Division 2--Granting Operations licences
Clause 328 provides that any person may apply for an operations licence.
The application is made to the chief executive in the approved form and is
supported by sufficient information to enable the chief executive to decide
the application. The application must be accompanied by the written
consent of the holders of the related water entitlements.
Clause 329 provides that the chief executive may require additional
information to be given about the application.
Clause 330 provides that in deciding whether to grant or refuse the
application the chief executive may consider whether the applicant has been
found guilty of an offence under the Bill, the Act or an interstate law.
Clause 331 provides for the approval of the application or approval
subject to conditions or refusal. If the application is refused or approved
subject to conditions, a notice is sent to the applicant advising of a right to
appeal against the decision. The licence takes effect on the day stated in the
licence. Any taking of water by a holder of en entitlement after the licence
has effect is unauthorised and any taking of water will constitute an offence
under the Bill.
Clause 332 enables conditions to be applied to an operations licence.
Without limiting the conditions that may be applied to a licence, the clause
specifies certain requirements that may be imposed on a licensee as a
condition of licence.
Division 3--Dealings with operations licences
Clause 333 provides that a licensee may apply to amend an operations
licence and that any such application is dealt with in the same way as an
application for a licence.
Clause 334 provides the procedure by which the chief executive may
amend an operations licence. The chief executive must first give the
licensee a show cause notice about the amendment and consider any
submissions made in response to the notice. If the chief executive does
amend the licence, then a notice is sent to the operations licence holder
advising of the right of appeal.
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Clause 335 describes the circumstances under which the chief executive
must amend a resource operations licence. If the holder of a water
entitlement to which the operations licence relates, notifies the chief
executive that the entitlement holder no longer wishes the licensee to take
water as their agent then the chief executive must amend the operations
licence accordingly. Also, if the holder of a water entitlement to which the
water licence relates ceases to be the holder of the entitlement, then the chief
executive must amend the operations licence.
Clause 336 provides that the chief executive may amend an operations
licence if the amendment is only to correct a minor error or to make a
change that is not a change of substance.
Clause 337 provides that an operations licence may be transferred to
another person on the same terms and conditions.
Clause 338 provides that a licensee may surrender an operations licence.
Clause 339 provides that the chief executive may cancel an operation s
licence if the chief executive considers it necessary or desirable. The chief
executive must give the licensee a show cause notice about the proposed
cancellation and must consider any submission made about the show cause
notice. If the chief executive is satisfied that the cancellation is necessary
then the chief executive must give a notice to the licensee advising of the
right to appeal against the decision.
Clauses 340--360 not used. See footnote 2 at end of chapter 1.
CHAPTER 3--INFRASTRUCTURE AND SERVICE
PART 1--PRELIMINARY
Clause 361 sets out the purpose of chapter 3 which is to:
· provide for a regulatory framework for the provision of water and
sewerage services in Queensland;
· provide for the functions and powers of service providers;
· protect the interests of customers;
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· provide for the regulation of referable dams; and
· provide for flood mitigation activities.
The regulatory matters covered under the Bill do not include drinking
water quality, as this matter is already regulated under the Health Act 1937.
Clause 362 clarifies that nothing in this chapter affects the powers of
local governments or authorised persons under the Local Government Act
1993. This clause is required because there is some overlap between the
powers and functions of service providers under this Bill (which includes
local governments) and the powers and functions of local governments
under the Local Government Act 1993.
Clauses 363--369 not used. See footnote 2 at end of chapter 1.
PART 2--SERVICE PROVIDERS
Division 1--Registration of service providers
Clause 370 sets out a requirement for local governments, water
authorities or any person who owns infrastructure for supplying water or
sewerage services to be registered. The regulatory framework under the Bill
is based on a process of registration for service providers, with regulatory
obligations stated in legislation (rather than, for example, in a licence). It
should be noted that the requirement to be registered captures the owner of
the infrastructure, rather than the operator. In cases where the operator of
the infrastructure is not the owner of the infrastructure, the onus will be on
the owner (for example, through contractual arrangements) to ensure that
the operator complies with the owner's obligations under the Bill.
Registration is a prerequisite to a service provider being able to utilise the
powers granted to service providers under chapter 3, part 2, division 2 of the
Bill.
This clause should be read with clause 823, which makes it an offence to
supply water services or sewerage services unless the person is registered or
is operating infrastructure for a service provider who is registered.
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Clause 371 sets out the process by which a service provider may apply to
become registered. An application for registration must be in the approved
form and accompanied by the prescribed fee. This clause should be read in
conjunction with clause 516(4), which details the information which the
regulator will require in order to register a service provider. Under
subclause (2), the regulator may require the service provider to give
additional information or verify, by statutory declaration, the information
contained in the service provider's application.
Clause 372 specifies that the regulator must register an applicant for
registration if the regulator is satisfied that the applicant has complied with
the requirements of 371. The regulator must also give the applicant notice
of the registration. Registration takes effect from the day the regulator
registers the applicant in the register.
Clause 373 makes provision for a service provider to apply to change its
registration details by either including or removing information about
infrastructure or services relevant to the service provider's registration.
Clause 374 provides for circumstances where there is a transfer of
ownership of a service provider's infrastructure (for example, through a sale
of the infrastructure). Where there is to be such a transfer, the Bill requires
that the transferor (that is, the currently registered service provider) give the
regulator notice of the proposed transfer, including any relevant information
required by the regulator to register the new owner (the transferee). The
notice must be in the approved form and accompanied by a fee which has
been prescribed by regulation. The regulator may require the transferor or
transferee to provide further information and may require that the
information provided in the notice be verified.
Clause 375 provides that the regulator must register the transferee as a
service provider for the infrastructure and services if the regulator is
satisfied that the requirements of clause 374 have been complied with, and
give both the transferor and transferee notice of the registration.
Registration of the new owner will take effect either on registration of the
transferee by the regulator or at a later date nominated in writing by both the
transferor and transferee.
Subclause (5) provides that, if the regulator has given a compliance notice
under clause 780 to the transferor while the transferor was registered as a
service provider, the transferee is taken to have been given the compliance
notice. A compliance notice under clause 780 is one of the enforcement
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mechanisms under the Bill, and subclause (5) seeks to ensure that a service
provider cannot avoid their obligations under the Bill by transferring
ownership of the infrastructure.
Clause 376 creates an obligation for a service provider to inform the
regulator if the service provider is likely to stop supplying a registered
service (for example if the service provider is about to become insolvent),
and there is no other entity willing to take over providing the service. It is
an offence for a service provider to fail to give the regulator 20 business
days notice without reasonable excuse. The purpose of this clause is to
make provision for the regulator to be notified in circumstances where the
regulator may need to take action to ensure the continued provision of an
essential service. Under Clause 955, the Governor in Council may
authorise the regulator take over the operation of the infrastructure to ensure
the continued provision of services.
Clause 377 clarifies that registration as a service provider does not entitle
a person to a water entitlement or a resource operations licence.
Clause 378 makes it an obligation for a service provider to annually
review its registration details and to notify the regulator about any changes
in information relating to the service provider's registration. The regulator
must include the changes in the register. This clause is to be distinguished
from clause 373 that allows a service provider to apply to the regulator for
an amendment to the service provider's registration details, if the service
provider wishes to do so.
Division 2--General powers of service providers and authorised persons
The provisions of division 2 of part 2 are required because service
providers, like other utility operators, need to have certain powers to enter
land to service and protect their assets. These powers already exist for
service providers who are local governments or water boards under the
Local Government Act 1993 and the Water Resources Act 1989. Where a
service provider is given a power under division 2, part 2, the service
provider may appoint an "authorised person" to exercise those powers on
the its behalf. Provisions relating to the appointment of authorised persons
are in division 3, part 2.
Clause 379 expressly states that powers provided under division 2, part 2
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do not apply to a part of a place used for residential purposes. This relates
to the powers of entry provided for under division 2.
Clause 380 clarifies that the exercise of powers by a service provider
under this division must be related to services for which the service provider
is registered.
Clause 381 gives the service provider the power to take action to protect
the service provider's infrastructure, where a person has illegally connected
to the service provider's infrastructure. The service provider may give the
person who has made the unauthorised connection a notice asking the
person to state why the service provider should not disconnect the
connection. The notice must state a time, which is not less than 48 hours,
within which the person must respond. If the person does not satisfy the
service provider why the connection should not be disconnected, an
authorised person may disconnect the connection. The provision also
enables the service provider to recover the cost of the disconnection and the
value of any service used by the person. However, if the unauthorised
disconnection is causing damage to the service provider's infrastructure, the
service provider may take immediate action to disconnect the unauthorised
connection. If a service provider enters a place, without at least 48 hours
notice, to disconnect an unauthorised connection, the service provider must
give a notice to the owner, or person in control of the place, stating the
purpose of entry.
Clause 382 enables a service provider to issue a notice to a person,
requiring the person to rectify defective or improper equipment that is
connected to or adversely affecting the service provider's infrastructure. If
the person does not rectify the equipment, the service provider may enter the
place and do the work required, and recover the cost of the work from the
person, as a debt due.
Clause 383 provides that a service provider may install or approve an
installation of a meter on infrastructure supplying water to premises. The
position of the meter is decided by the service provider. The meter is the
property of the service provider even if installed inside the boundary.
Clause 384 provides for an authorised person to enter a place for those
operational matters stated in this clause in relation to the service provider's
infrastructure. Notice of at least 14 days must be given of the entry and the
purpose of the entry unless the occupier consents to the entry or the service
provider needs to take urgent action to protect its infrastructure. In the case
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of emergencies, the authorised person must give notice at the time of entry
advising of the entry. If there is no person at the place at the time of entry,
the notice must be left at the place in a reasonably secure and conspicuous
place.
Clause 385 provides for when an authorised person, in exercising
powers under this division, damages anything. The authorised person must
immediately give notice of the damage to the owner of the thing damaged.
If for any reason this is not practicable, the authorised person must leave the
notice at the place in a reasonably secure and conspicuous place.
Clause 386 provides for compensation being claimed from the service
provider if a person incurs loss or expense because of the exercise or
purported exercise of a power under this division. Payment of
compensation may be claimed and ordered in a proceeding in a court of
competent jurisdiction.
Clause 387 provides for a service provider to recover costs from a
person who damages its infrastructure or causes the service provider to
suffer loss. The service provider may recover, as a debt due, the amount of
the loss or the reasonable cost of repairing the damage.
Division 3--Power to restrict water supply
Clause 388 enables a service provider to restrict water supply to its
customers because of climatic conditions or water conservation needs.
Such a restriction may be in relation to the amount of water used, the hours
when water may be used or the way water may be used. This clause seeks
to ensure that a service provider is not made liable for restricting the supply
water, where such restriction is necessary because of, for example, a
drought. The clause is also aimed at facilitating restrictions on water use
where such restrictions are part of a demand management strategy and the
restriction is essential to ensure that the aims of the strategy are met.
Clause 389 provides that where a service provider imposes water
restrictions, the service provider must give notice of the water restriction to
anyone affected by the restriction. The restriction does not have effect until
the day after the notice is given. Once the restriction is in effect, this clause
makes it an offence for a person to contravene the restriction.
Clause 390 enables a service provider to temporarily shut off water
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supply to premises in order to perform work on the provider's
infrastructure. The service provider must give at least 48 hours notice of the
intention to shut off supply to affected persons. The requirement to give 48
hours notice does not apply if there is a serious risk to public health, risk of
injury or damage or other emergency. However, where the service provider
shuts off water supply without notice, the service provider will be required
to give subsequent notice of the action to affected persons explaining the
reasons for the interruption to water supply and, if the interruption is
ongoing, information about how long the interruption will continue.
Division 4--Authorised persons
Clause 391 enables the service provider to appoint a person to be an
authorised person if the service provider is satisfied the person has the
necessary expertise or training. Authorised persons would generally be
employees or agents of the service provider who have the function of
running the service provider's business and/or operating the service
provider's infrastructure.
Clause 392 sets out the requirement for the service provider to provide
authorised persons with an identity card.
Clause 393 makes it an offence for a person to fail to return an identity
card within 15 business days (3 weeks) of ceasing to be an authorised
person, unless the person has a reasonable excuse.
Clause 394 requires that an authorised person display their identity card
when exercising a power under division 2.
Division 5--Liability of service providers
Clause 395 provides that a service provider is not liable for damages
arising from an event beyond the control of the service provider. However,
this clause does not affect, or in any way limit, the liability of the service
provider for negligence.
Clauses 396--407 not used. See footnote 2 at end of chapter 1.
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PART 3--SERVICE PROVIDER OBLIGATIONS
Division 1--Strategic asset management plans
Subdivision 1--Preparing, certifying and approving strategic asset
management plans
Clause 408 requires that each service provider have an approved strategic
asset management plan. The strategic asset management plan must identify
the services and infrastructure to which it applies, and:
· specify standards for key performance matters for the
infrastructure and services; and
· document an operation, maintenance and renewals strategy to
ensure the standards are met.
The plan must identify the methodology used by the service provider for
developing the standards, have regard to best practice industry standards and
be prepared in accordance with guidelines issued by the regulator.
It is not intended that the regulator will specify minimum standards for a
service provider's strategic asset management plan. This is because
standards will necessarily vary from provider to provider, according to the
class of customer being supplied and the type of service being provided.
For example, standards for urban domestic water supply would include
standards requiring high levels of continuity and reliability of supply. Water
for irrigation, on the other hand, would include varying levels of reliability
depending on the agreed conditions of supply.
Clause 409 requires that the strategic asset management plan be certified
by a registered professional engineer. This is to ensure that the plan is
approved by a qualified person (this may be an employee of the service
provider) as being appropriate for the service provider's infrastructure and
services. In certifying the strategic asset management plan, the registered
professional engineer must include the engineer's name and registration
details.
Clause 410 sets out the requirement for a service provider to submit its
strategic asset management plan to the regulator for approval, within 1 year
of being registered. It should be noted that, for existing service providers,
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transitional timings for compliance with the requirements of chapter 3, part
3, divisions 1 to 3 are set out in clause 1061. These timings range from 2 to
4 years from the commencement of the Bill.
Clause 411 states that the regulator must approve the strategic asset
management plan within 3 months unless the plan was certified by a person
who did not have the necessary qualifications or experience, or the plan is
inadequate in a material particular. In determining whether a plan is
inadequate in a material particular, the regulator must take account of cost
considerations for the service provider and its customers in addressing the
material particular. This is to recognise the reality that a service provider can
generally only provide a level of service for which its customers are able to
pay.
When the regulator approves the strategic asset management plan, the
regulator must also tell the service provider the intervals at which regular
reviews of the plan must be conducted. The interval at which reviews are
required must not be less than one year. The purpose of the regular reviews
is to ensure that the plan is updated on a regular basis. Clauses 415 and 416
set out the process for regular reviews.
The regulator may also, in some instances, require that the service
provider arrange for a regular audit, by an independent engineer, of its plan.
Clauses 417 and 418 set out the process for regular audits. If the regulator
requires the service provider to arrange for a regular audit, the interval at
which such audits are required must not be less than two years.
Clause 412 sets out the process to be followed by the regulator where the
regulator does not approve the strategic asset management plan. If a
registered professional engineer did not certify the plan, the regulator must
return the plan to the service provider with a notice requiring certification
and return of the plan to the regulator within the reasonable time stated in the
notice.
If the plan is inadequate in a material particular, the regulator must return
the plan to the service provider with an information notice stating how the
plan is inadequate in a material and requiring that the plan be revised and
returned to the regulator, or that a new plan be prepared, certified and given
to the regulator. The service provider must comply with the notice.
Clause 413 provides that a service provider may make changes to its
strategic asset management plan with the agreement of the regulator.
Clause 414 places an obligation on a service provider to comply with its
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strategic asset management plan when supplying services to its customers.
Subdivision 2--Audit reports and reviews
Clause 415 requires each service provider to review its strategic asset
management plan, in accordance with the approval notice given to the
service provider under clause 411. The purpose of the review is to ensure
the plan remains current, having regard to relevant best practice industry
standards. The outcomes of the review must be documented in the service
provider's annual report.
Clause 416 provides that, if a review of the strategic asset management
plan indicates that the plan should be changed, the service provider may
modify the plan and submit the modified plan to the regulator for approval.
The approval process under clause 411 will then apply to the plan.
Clause 417 will apply to a service provider if, as part of the approval
notice for a strategic asset management plan, the regulator requires a service
provider to arrange for regular audits of the plan. The purpose of the regular
audit is to verify the accuracy of data provided in the service provider's
annual report and assess the service provider's technical ability to meet the
standards identified in the strategic asset management plan. The regular
audit must be prepared by a registered professional engineer who is
independent from the service provider.
Clause 418 sets out requirements for declarations to accompany a regular
audit report. The service provider must provide a declaration stating that the
service provider has given all relevant information to the auditor and has not
knowingly given the auditor any false or misleading information. The
auditor must provide a declaration stating the auditor's qualifications and
experience, that he or she has not knowingly given any false or misleading
information and has not knowingly failed to reveal any relevant information.
Clause 419 enables the regulator to arrange for a spot audit of a service
provider's infrastructure if the regulator believes that a service provider is
not complying with its strategic asset management plan or that the plan is no
longer current. The regulator may only arrange for a spot audit if the
regulator has given the service provider a show cause notice under
clause 778, inviting the service provider to show cause why the spot audit
should not be conducted. The regulator must give the service provider a
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copy of the spot audit report within 30 business days (6 weeks) after
completion of the spot audit. If the spot audit reveals significant deficiencies
in the service provider's strategic asset management plan or that the service
provider has not complied with the plan, the regulator may recover the cost
of the spot audit from the service provider. The regulator must also give the
service provider an information notice requiring the service provider to
rectify any deficiency identified through the spot audit or implement the
plan.
Clause 420 specifies that the spot audit report must be accompanied by a
statutory declaration by the auditor, addressing certain matters.
Clause 421 requires the service provider to allow free and uninterrupted
access to the service provider's infrastructure and any records relating to the
infrastructure. However, the auditor must not enter the premises of a
customer of the service provider without the customer's consent.
Division 2--Customer service standards
Clause 422 clarifies that the purpose of this division is to provide a
mechanism, customer service standards, to protect customers who do not
have a supply contract with their service provider.
Clause 423 clarifies that the requirement to prepare customer service
standards only applies where a service provider does not have a supply
contract with all its customers. This is because customer service standards
are intended to be a mechanism for customers to be informed about the
terms and conditions of their relationship with their service provider, where
those terms and conditions are not already documented in a written supply
agreement.
This clause also specifies that clauses 426 (customer complaints)
and 427 (revision of customer standard) do not apply to agencies to which
the Parliamentary Commissioner Act 1974 applies. This is because that
Act provides a complaints mechanism through the Queensland Government
Ombudsman. The complaints mechanism in clause 426 is intended to
provide a process for customers of service providers who are not subject to
the Ombudsman's jurisdiction.
Clause 424 requires that a service provider must prepare customer
service standards within one year of registration. The service provider must
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provide a copy of the standard to the regulator and all of the service
provider's customers who do not have a supply contract.
Clause 425 provides that the customer service standard must specify the
level of service to be provided, processes for dealing customers and any
matters specified in guidelines issued by the regulator.
Clause 426 provides that a service provider must comply with its
customer service standards when supply services to its customers.
Clause 427 provides for a customer giving a notice of complaint about a
service provider's customer service standard to the regulator and the
regulator's response where there is a significant deficiency in the standard.
Importantly the customer must first attempt to resolve the complaint
through negotiation with the service provider.
Clause 428 provides that if the regulator requires a revision of the
customer service standard after inquiring into a customer complaint, the
service provider must revise the standard accordingly.
Clause 429 provides that a service provider must review its customer
service standard each year. If the standard changes as a result of the review,
the service provider must give a copy of the revised standard to the regulator
and each of its customers.
Division 3--Annual reports
Clause 430 provides that a service provider is required to prepare, for
each financial year after the strategic asset management plan and customer
service standard has been approved, an annual report. The clause states the
matters which must be addressed for each report. A copy of the report
must be given to the regulator within 120 business days (24 weeks) of the
end of the financial year. Where a service provider is a local government,
the local government can include the reports within a report required under
the Local Government Act 1993. A copy of the report must be available for
inspection and purchase.
Division 4--Water for fire fighting purposes
Clause 431 clarifies that division 4 only applies to service providers who
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provide retail water services (this would primarily be in urban areas).
Clause 432 provides that a water service provider cannot charge for water
taken from a fire fighting system for fire fighting purposes. "Fire fighting
system" and "fire fighting purposes" are defined in the Dictionary in
Schedule 4. However, the water service provider may fix a meter to any
private fire system. The purpose of fixing a meter would be to monitor
water use from the system, for the purpose of identifying any water which
might be taken from the fire system for reasons other than fire fighting
purposes (this is an offence under clause 433).
Clause 433 makes it an offence to take water from a fire system for
purposes other than to fight a fire. Where a person is convicted of an
offence under this clause, the service provider may recover from the person
the cost of the water taken.
Division 5--Exemptions for small service providers
Clause 434 provides for a small service provider to apply to the regulator
for an exemption from complying with division 1 (strategic asset
management plan), division 2 (customer service standards) or division 3
(annual reports) of part 3 of this chapter. Small service provider is further
defined in the dictionary to mean for:
· a retail water or sewerage service--a service provider with 1,000
or less connections to a registered service; or
· an irrigation service--a service provider with 100 or less users
and less than 20,000 ML throughput.
Clause 435 provides for how the regulator grants an exemption to a
small service provider from complying with divisions 1, 2 and 3. The
exemption may be for 1 or more of these divisions. If the regulator is
satisfied it is not reasonably practicable for the small service provider to
comply because the cost of complying would outweigh the benefits to the
service provider's customers, the regulator may exempt the small service
provider. The regulator may grant the exemption subject to conditions and
if so, the exemption operates only if the conditions are complied with.
Clause 436 provides for the regulator to give a notice to a small service
provider if the regulator exempts the provider. In addition, the regulator
must give notice of the exemption in the gazette. The clause states the
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details that the notice must contain. The Statutory Instruments Act 1992,
sections 24 to 26, apply to an exemption as if it were a statutory instrument.
Clause 437 provides that the small service provider must advise the
regulator of any change in its circumstances, if the exemption was given
under such circumstances. The clause also provides that the regulator may
amend or cancel an exemption after being advised of the change in
circumstances, or if the regulator becomes aware of the change in
circumstances through some other means. Where the regulator amends or
cancels an exemption, the regulator must give the service provider an
information notice about the amendment or cancellation (this make it a
reviewable decision) and, as soon as is practicable, give notice of the
amendment or cancellation in the gazette.
Clauses 438--447 not used. See footnote 2 at end of chapter 1.
PART 4--SERVICE AREAS
Division 1--Preliminary
Clause 448 provides that this part applies to a service provider who
supplies a retail water service or sewerage service in a service area. A retail
water service and sewerage service is further defined in the dictionary. This
division applies in relation to urban and town water supply and sewerage
and essentially incorporates relevant provisions found in the Sewerage and
Water Supply Act 1949 and its subordinate legislation, the Standard Water
Supply Law and Standard Sewerage Law, about the provision of water
supply and sewerage services. A substantial change however is that this
division will apply not only to a local government providing water supply
and sewerage services as a service provider (as currently under the
Sewerage and Water Supply Act 1949 and its subordinate legislation) but
also a private sector service provider.
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Division 2--Service areas
Clause 449 provides for the establishment of a service area in which a
service provider may supply a retail water service or sewerage service in
that area. A service area is further defined in the dictionary to mean an area
declared for the provision of a retail water service and a sewerage service.
A local government may, by resolution, declare all or part of its local
government area to be a service area for a retail water service or sewerage
service and declare the service provider for the service area. If the local
government is not intending to be the service provider for the service area,
the local government can only declare another entity to be the service
provider if the entity has agreed in writing to the declaration before the
declaration is made. This clause reflects in part the position currently under
the Standard Water Supply Law and Standard Sewerage Law about a water
supply area and a sewered area. It is the intention of this clause to allow a
local government to declare a service area for a private sector service
provider which intends to supply the services.
The service area may be amended by further declaration by the local
government. If the local government is amending a service area in which
another entity is declared to be the service provider, the local government
must receive the entity's written agreement. It is intended that only one
service provider may provide services in a declared service area. Therefore
a local government must not declare an area to be a service area if the area
has already been declared for another retail water service or sewerage
service.
Clause 450 provides that if a local government declares a service area, the
local government must publish a notice of the declaration or amendment of
a declaration in a newspaper circulating generally throughout the local
government area and make the notice available for inspection and purchase
under the Local Government Act 1993.
Clause 451 provides that a service provider for a registered service in a
service area must keep a map that details the limits of the service area and
the location of the service provider's infrastructure for the registered service.
A non-local government service provider must provide a copy of the map to
the local government in whose area the service area is declared. In addition
the service provider, whether or not it is a local government, must update
the map at least annually and make the map available for inspection and
purchase.
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Division 3--Access to services in service areas
Clause 452 requires that, within a service area, a service provider must
ensure that all premises can be connected to its water supply and/or
sewerage services and that its infrastructure can deal with the service
requirements of the premises. The design of the service provider's
infrastructure must allow for a connection point which must be located
within the boundary of premises. In addition, the property service, that part
of the service between the property boundary and the water main and the
sewer, is taken to be owned by the service provider.
Clause 453 provides that a service provider may recover from a
customer the reasonable cost of the service provider providing access to its
services in a service area.
Clause 454 provides that a service provider is not obliged to supply water
from its infrastructure to premises above the level at which the premises can
be supplied with water at a satisfactory pressure from the service provider's
system. However the service provider may agree to supply water to such
premises subject to the condition that the owner installs enough tanks and
pumps to ensure that water can be supplied to the premises at a satisfactory
pressure and flow.
Division 4--Connecting to registered services
Clause 455 provides that an owner of a property in a service area may
ask the service provider to supply it with services. The service provider
may require the owner of premises to carry out necessary work on the
premises and pay a reasonable connection fee to enable the services to be
supplied. When the owner has satisfactorily completed the work and paid
any reasonable connection fee, the service provider must connect the
premises to its services.
Clause 456 provides that a service provider may issue a notice to an
owner of premises in the service area requiring works to be undertaken for
the premises to be connected to its service. The service provider may
require the owner of premises to carry out necessary work on the premises
to enable its services to be supplied. When the owner has satisfactorily
completed the work, the service provider must connect the premises to its
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services.
Division 5--Restricting domestic water supply
Clause 457 allows a service provider to reduce the water supply to
premises used for domestic purposes in certain circumstances. Service
providers can do this if:
· the owner or occupier of premises contravenes a water restriction
or does not pay the water rates or charges for the service; and
· the owner or occupier of the premises has been given notice not to
continue to contravene the restriction or to pay the rate or charge;
and
· the owner or occupier continues to contravene the restriction or
refuses to pay for the service.
The service provider may reduce the water supply to the premises to the
minimum level necessary for health and sanitation purposes but must not
completely cut off supply.
Clauses 458--468 not used. See footnote 2 at end of chapter 1.
PART 5--TRADE WASTE
Part 5 provides for the approval of trade waste. The Bill incorporates the
relevant provisions about trade waste approval found in the Standard
Sewerage Law under the Sewerage and Water Supply Act 1949. The
admission of substances other than sewage into a sewerage system involves
a risk of damage or failure to both the infrastructure and the treatment
processes used to render the sewage fit for disposal to the environment.
This part provides for a local government which is a sewerage service
provider (local government sewerage service provider) to approve the
acceptance of trade waste into its sewerage infrastructure. The trade waste
generator may be another service provider or an individual trade waste
generator.
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For example, the local government sewerage service provider may own
the sewerage treatment plant into which another sewerage service provider
discharges trade waste. The other sewerage service provider is taken to be
the person who must obtain approval from the local government sewerage
service provider. The other sewerage service provider itself deals directly
with individual trade waste generators by way of contract or other
arrangement. Alternatively, the local government sewerage service provider
may be the only sewerage service provider and in those circumstances
accept trade waste directly from individual trade waste generators.
Clause 469 provides for a person, being a trade waste generator, to apply
to the local government sewerage service provider for approval for
admissions of trade waste into the local government's infrastructure.
Clause 470 states that approval for trade waste may be subject to
conditions under which a local government sewerage service provider may
approve discharge of trade wastes to sewerage.
Clause 471 provides for the procedure for the suspension or cancellation
of a trade waste approval. It also provides the means to appeal against a
decision to suspend or cancel the approval.
Clauses 472--479 not used. See footnote 2 at end of chapter 1.
PART 6--REFERABLE DAMS AND FLOOD
MITIGATION
Division 1--Referable dams
Currently under the Act, the chief executive regulates referable dams.
Under the Bill, the chief executive will continue to regulate referable dams
(in accordance with the new meaning of what is meant by a referable dam).
The Bill provides for what dams are referable and the process for making
that determination through a failure impact assessment. A substantial
change however, is that where a licence was issued under the Act, a
referable dam will be approved as development within the meaning of the
Integrated Planning Act 1997.
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Subdivision 1--Preliminary
Clause 480 provides for a specific definition for water for this division.
For the purposes of this division, water includes any other liquid or a
mixture that includes water or any other liquid or suspended solid.
Clause 481 defines a referable dam in relation to a failure impact
assessment rating. A dam is, or a proposed dam after its construction will
be, a referable dam if:
(a) a failure impact assessment is required to be carried out under this
part; and
(b) the assessment states that the dam has, or will have, a category 1
or category 2 failure impact rating.
The meaning of a failure impact rating is further defined in clause 482.
For the purposes of the Bill, a referable dam specifically does not include a
dam or proposed dam containing hazardous waste. Hazardous waste is
further defined in the dictionary to refer to waste as a result of the
processing of minerals. This represents a significant change from the
meaning of a referable dam under the Act. Under the Act, a referable dam
not only includes a dam which falls within a specified threshold size and
capacity but also includes a dam or a works, containing hazardous waste
resulting from the processing of minerals, that is a risk to life and property
and declared by the chief executive to be a referable dam.
It is the intention of the Bill to capture only a water storage dam, for
example, a water supply dam or a recreational dam containing water, and to
regulate such dams on the basis of population at risk in the event of dam
failure and for a dam containing hazardous waste to be regulated by
environmental licensing under the Environmental Protection Act 1994. As
a consequence, conditions about the safety of the dam will be included in the
environmental authority regulating the dam.
In addition a referable dam does not include a weir other than a weir that
has a variable flow control structure on the crest of the weir.
Clause 482 provides for what is a meant by a failure impact assessment
and how it is to be carried out. A failure impact assessment is an
assessment that has been certified by a registered professional engineer in
accordance with prescribed guidelines "Dam Failure Impact Assessment
Guidelines" prepared by the chief executive and published in the Gazette. A
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registered professional engineer is further defined in the dictionary. The
certification must include the engineer's name and registration. The purpose
of a failure impact assessment is to assess the risk to the population in the
event of the dam failing and determine an appropriate failure impact rating.
This represents a significant change from the Act that requires the chief
executive to control referable dams not only for the protection of life but
also property that would or could be endangered by the failure of a dam.
Subdivision 2--Failure impact assessing dams
Clause 483 details when an owner of a proposed dam must have the dam
failure impact assessed. A failure impact assessment must be carried out if
the proposed dam, after its construction, will be:
(a) more than 8 m in height and have a storage capacity of more than
500 ML; or
(b) more than 8 m in height and have a storage capacity of more than
250 ML and a catchment area that is more than 3 times the
surface area of the dam at full supply level. At "full supply level"
is defined to mean the level of the water surface when the
reservoir is at maximum operating level when not affected by
flood.
In addition, the owner of an existing dam or a proposed dam may be
given a notice by the chief executive, requiring the owner to have the dam
failure impact assessed. The notice will state the reasonable time in which
the failure impact assessment must be completed and given to the chief
executive. The chief executive may give a notice requiring a failure impact
assessment only if the chief executive reasonably considers that the dam, or
the proposed dam after its construction, would be assessed with a category
1 or a category 2 failure impact rating. A change of circumstances, for
example the encroachment of residences near an existing dam, may result in
the dam potentially posing a risk to life. In this case the chief executive may
require the dam owner to carry out a failure impact assessment. It is noted
that the owner of a dam in these circumstances is not given a right of appeal
against the chief executive's decision, however the owner of the dam is
subsequently not required to meet the cost of the failure impact assessment
in the event the assessment determines the dam is not referable. (See
clause 486).
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The threshold size and dimensions of a dam captured by this clause is a
change from the Act. Under the Act, a dam that meets the threshold size
and dimensions of 10 m or more in height and a storage of 20,000m3 or 5
m or more in height and a storage capacity of 50,000m3 is a referable dam.
The new provisions under the Bill are intended to capture only those dams
that pose a risk to population in the event of dam failure by requiring dams
over specified dimensions to be failure impact assessed.
The effect of the change in the threshold size and capacity dimensions is
to avoid the owner of a smaller structure being required to meet the cost of a
failure impact assessment when the dam is unlikely to pose any risk to
population should the dam fail.
Subject to the exceptions discussed further, a dam, or a proposed dam,
which is required to failure impact assessed must be reassessed every 5
years and the failure impact assessment submitted to the chief executive.
However if a dam is failure impact assessed and given a category 2 failure
impact rating under its initial or last assessment, the referable dam does not
need to be reassessed every 5 years. It is considered that it is unlikely that
such a referable dam would be reassessed and be given a lower failure
impact rating. This means that a dam which is failure impact assessed and
assessed as a category 1 rating or assessed as not a category 1 or category 2
rating will need to be failure impact assessed every 5 years. If a dam is
required to be failure impact assessed by way of notice given by the chief
executive, and the dam is failure impact assessed and assessed as either a
category 2 failure impact rating or not given a failure impact rating, the dam
does not need to be reassessed every 5 years.
Clause 484 defines the meaning of a failure impact rating. A failure
impact rating is defined in relation to the population at risk in the event of
failure of the dam. The meaning of `population at risk' is included in the
clause to mean--"the number of persons, calculated under the guidelines
mentioned in section 482(1)(b), whose safety will be at risk if the dam, or
the proposed dam after its construction, fails". A category 1 failure impact
rating means that the population at risk is 2 or more persons and not more
than 100 persons. A category 2 failure impact rating means that the
population at risk is more than 100 persons. "Population at risk" is
determined in accordance with the principles outlined in the Dam Failure
Impact Assessment Guidelines. The "population at risk" is calculated by
undertaking a dam break analysis using data collected about the dam and its
environs and default equivalent populations set out in the guidelines. For
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example, while only 1 person may live in a dwelling downstream of a dam
being assessed, the default equivalent population for that household for the
purposes of the dam break analysis may be 2.8 persons. Because the
number of persons in a house may change over time with changes in family
size or ownership, the default population at risk is calculated on the average
number of persons per occupied dwelling in Queensland (based on the latest
census) rather than counting the number of persons actually residing in the
residence at the time of the assessment.
Clause 485 provides for offences in relation to the carrying out of a
failure impact assessment.
Clause 486 provides for when the owner of the dam or the chief
executive pays the cost of the failure impact assessment. The chief
executive must pay the reasonable cost of preparing and certifying the
failure impact assessment only where the chief executive requires an owner
of a dam to carry out a failure impact assessment and the dam is
subsequently assessed as not being referable. In all other cases, the owner
of the dam must pay the cost of the assessment. It is noted that the cost of
preparing the assessment includes the cost of any review of the assessment
under clause 489.
Clause 487 provides for how the chief executive deals with a submitted
failure impact assessment. The chief executive may accept, reject or require
a review of the assessment. However the chief executive may request
information from the owner in the first instance for the purpose of clarifying
an assessment which may or may not lead to the chief executive requiring a
review of the assessment or rejecting the assessment.
Clause 488 provides that if the chief executive accepts the failure impact
assessment, the chief executive must give notice of the acceptance to the
owner of the dam within 30 business days of acceptance.
Clause 489 provides for when the chief executive may ask for a review
of a failure impact assessment. It is not intended that the role of the chief
executive is to formally approve an assessment nor is it intended that the
chief executive must simply accept the assessment. The chief executive
may ask for a review where the chief executive considers an assessment is
incorrect or incomplete in a material particular or not completed in
accordance with the guidelines prepared by the chief executive under
clause 482. A request for a review must be made within 30 business days
of the chief executive being satisfied that the assessment in incorrect or
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incomplete. If the chief executive asks for a review, the chief executive
must return the assessment to the owner and give the owner of the dam an
information notice requiring a review of the assessment. In addition to the
standard details in the information notice, the chief executive must also ask
that that owner have the assessment reviewed, corrected or completed and
recertified. The owner must then return the corrected or completed
assessment to the chief executive within the time stated in the notice. The
owner of the dam may appeal against the chief executive's decision to
request a review of the assessment.
Clause 490 provides for the chief executive rejecting a failure impact
assessment. The chief executive may reject the assessment in the first
instance if the chief executive reasonably considers that the assessment is
incorrect or incomplete in a material particular or not completed in
accordance with the guidelines mentioned in clause 482. If the chief
executive has requested a review of an assessment because it required
correction or completion--the chief executive may reject the resubmitted
assessment if it has not been corrected or completed or the chief executive is
not satisfied that the resubmitted amended assessment corrects or completes
the matters of concern. If the chief executive rejects the assessment, the
chief executive must give an information notice to the owner of the dam.
The owner of the dam may appeal against the chief executive's decision to
reject the assessment.
Clause 491 provides for how the chief executive is to assess a
constructed referable dam to determine conditions to be imposed about the
safety of the dam. This clause does not apply to the construction of a new
dam as this will be assessed under the Integrated Planning Act 1997 as
"development being operational work". The framework proposed under
the Bill is to separate the process for determining what is a referable dam,
through failure impact assessment, and the process for the approval of the
construction and operation of a dam, being development within the meaning
of the Integrated Planning Act 1997. Whilst the Integrated Planning Act
1997 will provide the system for the approval of a new referable dam, an
existing referable dam is assessed under the Bill, with the assessed
conditions about the safety of the referable dam being deemed to be a
development permit, including conditions, within the meaning of the
Integrated Planning Act 1997. This allows the chief executive to utilise the
offence and enforcement provisions under the Integrated Planning Act 1997
in respect to conditions, about the safety of a referable dam, assessed under
the Bill.
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The chief executive has the power to apply safety conditions to an
existing referable dam. The chief executive may request information from
the owner of a referable dam for the purpose of deciding conditions about
the safety of the referable dam. The information may include, for example,
emergency action plan; dam operating procedures; dam maintenance
procedures; inspection and evaluation report; dam data book and dam safety
review and design report. After assessing the information, the chief
executive will determine the conditions which are to apply to the referable
dam. The chief executive must decide the safety conditions within 40
business days after receiving the requested information or any extended
time as agreed to by the owner of the referable dam. The safety conditions
must be relevant to, but not an unreasonable imposition on, the dam or
reasonably required for the dam. This is in essence a test similar to the test
for imposing conditions under the Integrated Planning Act 1989. The chief
executive must give the owner of the referable dam an information notice
about the dam safety conditions. The owner of the referable dam may
appeal against the chief executive's decision about safety conditions.
The decision, including the safety conditions, of the chief executive are
taken to be a development permit, including conditions, within the meaning
of the Integrated Planning Act 1997. If a development permit has been
previously given by some other entity in relation to the dam, the dam safety
conditions are taken to be further conditions attaching to the existing
development permit. If a development permit has not been previously
given by some other entity in relation to the dam, the chief executive's
decision, including the dam safety conditions, is taken to be a development
permit with attached dam safety conditions.
Clause 492 provides for the chief executive changing safety conditions of
a referable dam. The chief executive may change a safety condition where
the chief executive thinks it is necessary or desirable to make the change in
the interests of dam safety. If the chief executive decides to change the
conditions, the chief executive must give the owner of the referable dam an
information notice about the decision. The change of conditions has effect
from the day stated in the notice. It is noted that the chief executive's power
to change conditions includes the power to add conditions. The changed
conditions are taken to be conditions attaching to the development permit
mentioned in clause 491(7) or (8). The owner of the dam may appeal
against the chief executive's decision to change or add a safety condition.
Clause 493 states that if a referable dam is subsequently assessed as no
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longer being a referable dam within the meaning of the Bill, any existing
dam safety conditions no longer apply to the dam. This may apply where a
dam is required to be failure impact assessed every 5 years and there has
been a change of circumstances leading to a change in the failure impact
rating.
Subdivision 3--Chief executive's powers
Clause 494 provides the chief executive with certain powers and rights in
specific circumstances where there is danger of the failure of a referable
dam. This clause only applies where the chief executive is satisfied, on
reasonable grounds, there is danger of failure of a dam and action is
necessary to prevent or minimise the impact of the failure. The chief
executive has the power to direct the owner or operator of a referable dam,
by way of written notice, to take stated reasonable action within a stated
reasonable time. It is an offence to fail to comply with the notice.
For the purposes of this clause, the notice is taken to be a compliance
notice under the Bill but not a compliance notice which requires a show
cause notice being given to the person in the first instance. A show cause
notice would delay the effect of the notice and the carrying out of the urgent
remedial work. In addition the notice has the effect that it runs with the land
and binds the owner of the land, the owner's successors in title and any
occupier of the land. The notice is also taken to be a remedial action notice
under the Land Act 1994. This has the effect that the stated action required
by the chief executive becomes a condition of the licence or lease under the
Land Act 1994. In these circumstances, if the licensee or lessee fails to
comply with such a condition, the licence may be cancelled or the lease may
be forfeited under the Land Act 1994. These measures go to ensuring that
the urgent remedial action is actually carried out. However it is provided
that in the event the cost of carrying out the stated action outweighs the cost
of removing the dam, the owner or operator of the dam has the option of
removing the dam on notice to the chief executive.
Failure to comply with the notice of the chief executive has the effect of
failure to comply with a compliance notice under the Bill. (See clause 783).
Consequently if the owner or operator of the dam fails to comply the notice
of the chief executive, the chief executive may carry out the stated action or
alternatively take any action necessary to prevent or minimise the impact of
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the failure of the dam. Although the chief executive may utilise clause
783(4) to recover as a debt any expense incurred, this clause specifically
provides that any expense incurred by the chief executive becomes a charge
on the land. The chief executive may give the owner or operator an
information notice about the amount of the expense incurred, under either
clause 783(1) or (4). The owner or operator may appeal against the amount
of the expense incurred by the chief executive, however this right of appeal
does not extend to the operation of the charge itself.
Subdivision 4--General matters for referable dams
Clause 495 states that nothing in the Bill affects a referable dam owner's
or operator's liability for any loss or damage caused by the failure of, or
escape of water from, a referable dam. This clause essentially states the
position at common law and the legal position that exists under the Act.
Division 2--Flood mitigation
Clause 496 provides that the owner of each dam nominated in a
regulation under the Bill must prepare a flood mitigation manual of
operational procedures for flood mitigation for the dam in accordance with
the time nominated in the regulation. A dam nominated in the regulation
will be a dam which was constructed for the purpose of flood mitigation. A
flood mitigation manual ensures that such dams make controlled releases of
water for flood mitigation purposes in accordance with pre-agreed
conditions.
Clause 497 states that the owner must give the chief executive a copy of
the flood mitigation manual for the chief executive's approval. The chief
executive's approval is notified in the gazette. The approval of a flood
mitigation manual is for a period of not more than 5 years. The chief
executive may obtain advice from an advisory council before approving the
manual.
Clause 498 provides that the chief executive may ask the owner, by
notice at any time, to amend the flood mitigation manual. The chief
executive must approve the amended manual by notice in the gazette. The
owner must comply with the chief executive's request to amend the manual.
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The chief executive's approval of the amended manual may be either for the
balance of the approval period before the amendment or for a period of not
more than 5 years from the date the manual was approved. The chief
executive may obtain advice from an advisory council before approving the
amended manual.
Clause 499 provides that before a flood mitigation manual expires, the
owner must review, and if necessary update the manual and give a copy of
the manual to the chief executive for the chief executive's approval.
Clause 500 provides that the chief executive or a member of the
committee will not be civilly liable for an act done or omission made
honestly and without negligence under this division. It also provides that an
owner of a dam (which includes a director, employee or agent of the owner)
who observes the operational procedures contained in a flood mitigation
manual approved by the chief executive, will not be civilly liable for an act
done or omission made honestly and without negligence in observing the
operational procedures. In both cases, the liability attaches to the State
instead.
Clauses 501--513 not used. See footnote 2 at end of chapter 1.
PART 7--REGULATOR
Clause 514 states that the chief executive of the department is the
regulator. It is proposed that on the commencement of the Bill, the
Department of Natural Resources will be responsible for the Bill. However,
in the future, the regulator function may be undertaken by a person other
than the Chief Executive of a Department. Consequently, the Bill has been
drafted using the generic terminology of "regulator" rather than simply
referring to the chief executive.
Clause 515 provides for the general functions of the regulator. The
regulator must consider the purposes of the Bill when performing its
functions.
Clause 516 provides for a register of service providers to be kept by the
regulator and the details the information the register must contain. The
regulator must, as soon as practicable after 1 January in each year, publish
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in the government gazette a list of the registered service providers as at
1 January in that year.
Clause 517 states that the regulator may require a service provider, by
way of written notice, to provide information to enable the regulator to
perform its functions. The notice must state the reasonable time in which
the service provider must provide the information to the regulator. The
service provider, however, is not required to give any information which
might tend to incriminate the service provider.
Clause 518 provides that the regulator must not disclose to any person
other than the Minister any commercially sensitive information received
under clause 517. This clause also defines what is information of a
`commercially sensitive nature'.
Clause 519 provides that the regulator may prepare annual reports about
the regulator's activities under this part. The annual report may include
information the regulator obtained under part 3, division 3 about annual
reports provided by a service provider or information obtained by the
regulator under clause 517.
Clause 520 states that the regulator may delegate a power of the regulator
to an officer of the department or an authorised person if the regulator is
satisfied the person has the necessary experience and expertise. A
regulation may be made stating that a power of the regulator may not be
delegated or only delegated to a particular person.
Clauses 521--541 not used. See footnote 2 at end of chapter 1.
CHAPTER 4--WATER AUTHORITIES
PART 1--PRELIMINARY
Clause 542 sets out the purpose of the chapter which is to create a
framework that enables water authorities to be established and allows for
them to operate. The framework requires water authorities to be efficient in
carrying out their water activities by applying commercial principles. The
framework also sets out governance arrangements, accountability
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requirements, and encourages community involvement in making and
implementing arrangements for using, conserving and managing water.
Clauses 543--547 not used. See footnote 2 at end of chapter 1.
PART 2--ESTABLISHING WATER AUTHORITIES
Division 1--General
Clause 548 provides that a water authority can be established by
regulation. The authority may be formed to carry out any or all of the
defined water activities including the supply of water, drainage services or
sewage services. The authority may carry out these activities anywhere in
the State or the authority may be restricted to a particular area of the State.
The regulation will set out this information as well as the name of the
authority, the category of the authority, and how its board of directors is
composed.
Clause 549 stipulates that a water authority may be a category 1 water
authority or a category 2 water authority. A category 1 water authority is
treated differently to a category 2 water authority in some respects. For
instance, a category 1 water authority is subject to commercialisation and
cannot rate for provision of its functions (although a category 1 water
authority can still charge for provision of its functions). A category 2 water
authority is not subject to commercialisation and can rate or charge for the
provision of its functions. A category 1 water authority is also subject to
different reporting requirements.
The dictionary in Schedule four of the Bill provides that a category one
authority means the Gladstone Area Water Board or Mt Isa Water Board.
All other water authorities are category 2 authorities.
Clause 550 provides that a water authority is a body corporate that has all
the powers of an individual and all the powers granted by the Bill or any
other Act. A water authority does not represent the State.
Clause 551 provides that the Financial Administration and Audit Act
1977 and the Statutory Bodies Financial Arrangements Act 1982 apply to a
water authority. A category 1 water authority is not required to have a
strategic plan under the Financial Management Standard 1997 because the
Bill requires them to have a corporate plan which is substantially similar.
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Division 2--Procedure
Clause 552 provides that before a regulation establishes a water authority
the chief executive must publish a notice of the proposal in the gazette and in
a newspaper. A range of matters must be included in the public notice
including works it intends to build, land it intends to acquire and how the
board of directors will be composed. The public may make submissions in
respect of the establishment proposal.
Clause 553 states that the chief executive has to consider each
submission before establishing the water authority. The chief executive
only has to consider those submissions that were properly made.
Clause 554 states that the chief executive may change the proposal as a
result of submissions or for another reason the chief executive considers
appropriate. A changed proposal must be readvertised and submissions
may again be forwarded for the chief executive's consideration.
Clause 555 provides that the chief executive must consider any further
submissions on a changed proposal before the water authority is
established. Once again the chief executive only has to consider those
submissions that were properly made.
Clause 556 provides a process for the amendment of an establishment
regulation. Before the regulation is amended, a notice of the proposed
amendment must be published in the same way stated in clause 552(1).
The notice must contain details of the proposed amendment.
Clause 557 states that the chief executive has to consider each
submission before amending the establishment regulation. The chief
executive only has to consider those submissions that were properly made.
Clauses 558--568 not used. See footnote 2 at end of chapter 1.
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PART 3--FUNCTIONS AND POWERS OF WATER
AUTHORITIES
Division 1--Functions
Clause 569 provides that a water authority's main function is to carry out
the water activities it decides. The following are defined as water activities
in the dictionary in schedule 3:
· Water conservation;
· Water supply;
· Irrigation;
· Drainage, including stormwater drainage;
· Flood prevention;
· Flood water control;
· Underground water supply improvement or replenishment;
· Sewerage; or
· Anything else dealing with water management.
A water authority can decide which particular water activities that it will
carry out. The water authority may decide to carry out only one of the
above water activities. Alternatively, a water authority may decide to carry
out all of the above water activities.
A water authority that is established to carry out its water activities,
generally in the State is not restricted to any particular area.
However, a water authority that is established for a particular area may
carry out a water activity outside its area only if doing this does not limit its
ability to perform water activities within its area and the authority or its
ratepayers or customers are not prejudiced financially. Additionally, a
category 1 authority with an area can only carry out a water activity outside
its area if carrying out this activity is in accordance with the authority's
performance plan.
Clause 570 provides that a water authority (regardless of whether it has
an area or not) may carry out other functions including, managing
recreational areas on land owned by the authority or under its control and
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controlling soil erosion. A water authority may accept external funding to
carry out other functions but only if the water authority wants to carry out
the functions. A water authority may only carry out other functions on land
not owned by the authority or under its control with the consent of the
landowner.
Clause 571 declares that the establishment of a water authority, or a
decision by it to carry out the other functions in clause 570 does not of itself,
entitle the water authority to any water entitlement, resource operations
licence, or any other resource management approval that may be necessary.
Division 2--Powers
Subdivision 1--Rates and charges
Clause 572 enables a category 1 water authority to charge for carrying
out its functions. It will not be able to levy rates on a property basis. A
category 2 water authority may, for carrying out its functions, make or levy
a charge and if it has an area it may make or levy rates on a property basis.
Clause 573 exempts certain lands from rating.
Clause 574 enables a water authority to charge interest on overdue rates
or charges at a rate of interest decided by it, provided that the rate of interest
is not larger than 15% or larger than another percentage prescribed under a
regulation.
Clause 575 enables a water authority to offer a discount for payment of a
rate or charge levied by it, provided that the discount cannot be larger than
15% of the rate or charge unless otherwise prescribed by regulation.
Clause 576 provides that a water authority can recover any overdue rate
or charge together with interest owing. The water authority can only recover
the rate or charge from the person on whom the rate or charge is made or
levied. For instance, if a property is leased and the rate or charge is levied
upon the lessee then the authority cannot recover an overdue rate or charge
from the owner of the property.
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Subdivision 2--Taking land
Clause 577 provides that a water authority may take any land. The
processes of the Acquisition of Land Act 1967 apply for the taking of
freehold land. The processes of the Land Act 1994 apply for the taking of
land other than freehold land.
A category 1 water authority or a category 2 water authority may take
land stated in the authority's establishment proposal (or amendment of the
proposal), as land the authority intends to acquire, by following the
processes in the above acts.
A category 2 water authority can take land other than land stated in the
authority's establishment proposal (or amendment of the proposal), by
following the processes in the above acts.
A category 1 water authority can also take land other than land stated in
the authority's establishment proposal (or amendment of the proposal), by
following the processes in the above acts. However, before the authority
embarks on the processes in either of the above acts, the authority must
obtain the Minister's written approval to do so.
Clause 578 states that a water authority can take land for carrying out
works and any other purpose, within the authority's main functions.
Subdivision 3--General
Clause 579 provides that a water authority can delegate any of its powers
to a director or an appropriately qualified employee. A person cannot
exercise the delegated power if the person has a direct or indirect financial or
personal interest in the matter.
Division 3--Reporting requirements
Clause 580 requires a water authority to notify the Minister of significant
actions, for example, if a category 2 water authority wants to buy something
that costs more than $100,000 or if a category 1 water authority wants to
buy something that costs more than $1,000,000. This requirement will
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ensure that the Minister is kept informed of significant actions of the water
authority. A water authority will not have to notify the Minister of a
significant action if the action has already been previously noted in the
annual report or performance plan of an authority.
Clause 581 provides that the Minister can ask a water authority for
information about the performance of any of its functions or operations and
the water authority must provide the Minister with the information
requested.
Clause 582 requires a category 1 water authority to include a statement of
operations in its annual report. The following information is an example of
what must be included in the statement:
· A comparison of the authority's performance with it's
performance plan;
· Any amendments to the performance plan during the year; and
· Particulars of any directions given to the authority by the Minister
or jointly with the Treasurer.
Clause 583 requires a water authority that charges on a volumetric basis
for water supplied to include in its annual report a statement identifying and
disclosing all cross-subsidies between classes of customers and disclosing
the classes of customers for whom a water activity is carried out at an
amount below the full cost of the activity; and the amount.
Division 4--Water authority employees
Clause 584 provides that a water authority may employ the staff it needs
to perform its functions.
Division 5--Water authority officers' duties and responsibilities
Clause 585 provides that a director, chief executive officer, other person
concerned or taking part in the authority's management or other employee
has the following duties and responsibilities:
· The duty to act honestly in the exercise of powers and discharge
of functions;
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· The duty to exercise the degree of care and diligence that a
reasonable person in a like position in a water authority would
exercise in the authority's circumstances;
· The duty not to make improper use of information acquired
because of his or her position; and
· The duty not to make improper use of his or her position in the
authority.
The clause includes offence and recovery provisions.
Clauses 586--596 not used. See footnote 2 at end of chapter 1.
PART 4--BOARD OF DIRECTORS
Division 1--Appointment etc. of board of directors
Clause 597 provides that a water authority must have a board of
directors. The board of directors control the water authority.
Clause 598 provides that the regulation establishing a water authority
must contain the numbers of directors comprising the board, how the board
is comprised and the procedure for comprising the board. If the water
authority is to have an authority area, then the regulation may contain a
board composed of elected directors or nominated directors. If the water
authority is not to have an authority area, then the regulation may stipulate
how the board is composed, but directors may only be nominated and not
elected
Clause 599 stipulates the composition of the board of directors for the
Gladstone Area Water Board.
Clause 600 requires that all directors are to be appointed by the Governor
in Council. Directors will be nominated or elected in accordance with the
water authority's establishment regulation. The names of the nominated
directors and the names of the elected directors will be forwarded to the
Governor in Council who will give effect to the nominations and the results
of the election by appointing all the directors to the board.
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Clause 601 provides that the chairperson of a water authority is the
director who is chosen by the board. If the board does not choose a
chairperson within one month of the date appointed for the board's first
meeting then the chief executive may choose a director to be the
chairperson. The chairperson will hold office until the next annual meeting
of the board. This provision does not apply to the Gladstone Area Water
Board, because this board has an independent chairperson nominated by the
chief executive.
Clause 602 provides that the Minister may appoint the chief executive to
administer a water authority until the authority's first board is appointed.
The Minister has the power to appoint specified persons to administer a
water authority if the Governor in Council removes all the directors of a
water authority's board from office.
Clause 603 specifies in what circumstances a person is not eligible to be
elected, or nominated for appointment as a director of a water authority. A
person is disqualified from becoming a director if the person is an
undischarged bankrupt or if the person is not mentally or physically able to
do the job satisfactorily. A person is also unable to become a director if the
person has been convicted of an indictable offence or is an employee of the
water authority. Lastly, a person cannot become a director if the person has
a direct interest in an agreement with the water authority. However, a
person is still eligible to be appointed as a director if the agreement is for the
supply of water by the authority to the person.
Clause 604 provides that a director is appointed for a term of 3 years,
unless the person is being appointed to fill a vacancy in the board. If a
person is appointed to fill a casual vacancy on the board then the person is
only appointed for the remainder of the vacating director's term. Directors
continue to hold office until successors have been appointed. This clause
does not apply to the Gladstone Area Water Board.
Clause 605 provides for the term of office for directors of the Gladstone
Area Water Board..
Clause 606 provides that a director (who is not the chairperson) can
resign by handing a notice of resignation to the chairperson. A chairperson
(other than the chairperson of the Gladstone Area Water Board) can resign
as the chairperson and remain a director of the water authority by handing a
note of resignation to the board. Alternatively, that chairperson could resign
as both the chairperson and as a director at the same time by utilising the
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same method.
The chairperson of the Gladstone Area Water Board may tender his or
her resignation by handing a note of resignation to the board. However, the
chairperson cannot tender his or her resignation in respect of the chair only.
If the chairperson wishes to resign then the chairperson must resign from
the office of director and the office of chairperson at the same time.
Clause 607 provides that the Governor in Council can terminate the
appointment of a director in the following circumstances:
· The director misses three consecutive meetings without an
excuse; or
· The director becomes ineligible to be elected or nominated; or
· The director refuses to act as a director; or
· The director is convicted of an offence under the Bill, for
example, the director has been convicted of a breach of the duty of
honesty, or;
· The director is prohibited from being a director of a body
corporate by the Corporations Law for a reason other than the
persons age.
Clause 608 provides that the office of director becomes vacant in the
following circumstances:
· The director dies during the director's term of office;
· The director resigns from office; or
· The Governor in Council removes the director from office.
Additionally, the office of a director that is a nominee and councillor of
a local government becomes vacant if the director ceases to be a
councillor of the local government for a reason other than:
· Defeat at an election of councillors of the local government; or
· Failure to contest the election.
Clause 609 provides that the Governor in Council may remove all the
directors of a water authority's board from office for certain reasons.
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Division 2--Director's duties
Clause 610 requires a director who has an interest in an issue being
considered by the board which could conflict with the proper performance
of the director's duties to declare that interest as soon as possible. After the
director has declared the interest to the board the director has to leave the
room while the remaining directors decide whether the director with the
interest should vote on the issue.
Clause 611 requires a director of a water authority to act in the best
interests of the authority, in exercising powers, and discharging functions.
Clause 612 sets out a prohibition on loans to directors and others and a
prohibition on guarantees or security in connection with loans made to
directors and others.
Clause 613 prohibits indemnities and exemptions from liability incurred
as an officer of a water authority. An exception from the prohibition applies
so that a water authority is not prevented from indemnifying a person
against civil liability (other than liability to the water authority) unless the
liability arises out of conduct involving lack of good faith.
Clause 614 prevents a water authority from paying a premium for
insuring an officer against liability arising out of wilful breach of duty in
relation to the water authority and in breach of the improper use of
information or improper use of positions provisions in part 3 division 5.
Clause 615 provides that a person who is a director of a water authority
or takes part in its management during insolvent trading commits an offence
against this clause. Defences are set out in the clause.
Clause 616 provides that a person who is found guilty of an offence
against the previous clause is personally responsible for payment to the
water authority of the amount required to satisfy so much of the debts of the
authority as the Supreme or a District Court considers proper.
Clause 617 provides for examination by the Supreme or a District Court
of persons who have been or may have been guilty of fraud, negligence,
default, breach of trust or breach of duty or other misconduct in relation to a
water authority or of persons who may be capable of giving information in
relation to the management, administration or affairs of the water authority.
Clause 618 provides for the Supreme or a District Court to grant relief to
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a director, chief executive officer, person concerned or taking part in the
authority's management or an employee of a water authority from liability
for specified matters if the person ought fairly to be excused.
Clause 619 provides that an officer of a water authority must not provide
false or misleading information or documents and if he does so commits an
offence under the provision.
Division 3--Board proceedings
Clause 620 stipulates that the board may hold their meetings at their own
discretion, provided that the chief executive will decide the time and the
place of the board's first meeting and that the board holds at least one
meeting a year.
Clause 621 provides that the board may conduct its proceedings as it
considers appropriate provided that:
· The chairperson presides over all meetings the chairperson is
present;
· A director is chosen to preside in the chairperson's absence;
· A quorum is present at each meeting;
· A question is decided by a majority of votes of the directors
present and voting; and
· Each director present has a vote on each question and if the votes
are equal the chairperson has an additional casting vote.
Clause 622 provides that a director may participate in a meeting by
telephone, closed circuit television or by another means of communication
with the board's permission.
Clause 623 requires the board to keep minutes of its proceedings
Division 4--Directors' fees and allowances
Clause 624 provides that a director is entitled to be paid the fees and
allowances approved by the Minister.
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Clauses 625--636 not used. See footnote 2 at end of chapter 1.
PART 5--CATEGORY 1 WATER AUTHORITY
MATTERS
This part outlines matters that only affect category 1 water authorities
including commercialisation, payment of tax equivalents, dividends and
debt neutrality fees, and adoption of an annual performance plan. Many of
these provisions are based on the Government Owned Corporations Act
1993.
To address variability in board sizes, two categories of water authorities
are established for accountability, reporting and asset management
requirements. Both category 1 and 2 water authorities are required to meet
existing legislative reporting requirements. In addition, a category 1 water
authority is subject to commercialisation and is required to have a
commercialisation charter and complete an annual performance plan.
Division 1--Commercialising category 1 water authorities
Subdivision 1--Preliminary
Clause 637 outlines the meaning of `commercialisation'.
Clause 638 outlines the 4 key commercialisation principles.
Subdivision 2--Category 1 water authorities subject to commercialisation
Clause 639 stipulates that a category 1 water authority is subject to
commercialisation.
Clause 640 outlines the key objectives of a category 1 water authority
under commercialisation. These key objectives are to be commercially
successful, and efficient and effective in the provision of goods and the
delivery of services (including those activities that are considered to be
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community service obligations). The success of a water authority achieving
these objectives will be measured against the performance targets outlined in
the authority's performance plan.
Division 2--Commercialisation charter for category 1 water authorities
Clause 641 provides that the Minister may prepare a commercialisation
charter for a category 1 water authority. The Minister may determine
whether, in the circumstances, a commercialisation charter is necessary.
Clause 642 specifies the content of a commercialisation charter. A
Category 1 water authority's commercialisation charter outlines how the key
commercialisation principles will be applied to the water authority's
operations and the timetable for implementation.
Clause 643 provides that a category 1 water authority must implement
their commercialisation charter that the Minister has prepared.
Clause 644 provides that a commercialisation charter expires 1 year after
the authority becomes a category 1 water authority. It is intended that the
commercialisation charter should assist water authorities to make the
transition to commercialised entities. It is expected that once a water
authority has operated as a commercialised entity for 1 year, it would no
longer require a mandatory commercialisation charter.
Division 3--Corporate plan for category 1 water authorities
Clause 645 specifies that a category 1 water authority must have a
corporate plan. These plans outline the strategic direction for a water
authority. The corporate plan is reviewed on an annual basis.
Clause 646 specifies that the Minister may issue guidelines about the
form and content of corporate plans and category 1 water authorities are
required to comply with the guidelines.
Clause 647 provides that a category 1 water authority must prepare and
submit to the Minister for the Minister's agreement a draft corporate plan
within the time limits set out in the clause.
Clause 648 sets out the procedures and time limits for the Ministers to
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request or direct the contents of and other matters in relation to the draft
corporate plan.
Clause 649 provides for a water authority's draft corporate plan to
become its corporate plan for the relevant financial year upon the Minister's
agreement.
Clause 650 provides that where a corporate plan has not been agreed to.
The last plan submitted to the Minister, by the water authority will become
the water authority's corporate plan until a further plan has been agreed to
by the Minister.
Clause 651 provides for the modification of the corporate plan with
agreement of the Minister or by the Minister's direction to the water
authority.
Division 4--Performance plan for category 1 water authorities
Clause 652 requires that a category 1 water authority must have a
performance plan that is consistent with the corporate plan for each financial
year. The performance plan is the means through which a category 1 water
authority is directly accountable to the Minister. The performance plan
facilitates a commercial focus in the water authority's operations.
Clause 653 sets out the matters that must be included in the performance
plan. It is intended that the performance plan not be limited to the matters
outlined in this clause. The performance plan must also contain details
regarding a water authority's community service obligations. Community
service obligations are non-commercial activities which a category 1 water
authority is directed to pursue by the State. However, it is important to
make a distinction between community service obligations which are
specifically imposed by the State and arrangements adopted by the water
authority as "good business".
Clause 654 requires the water authority to prepare and submit to the
Minister for the Minster's agreement a draft performance plan within the
times specified in the clause. The water authority and the Minister must
endeavour to reach agreement on the draft performance plan as soon as
possible.
Clause 655 sets out the procedures for the Minister to request or direct
modifications to the performance plan and other matters within times
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referred to in the clause.
Clause 656 provides that once a draft performance plan has been agreed
to by the Minister, it becomes the authority's performance plan for the
relevant financial year.
Clause 657 provides for a draft performance plan to be taken to the water
authority's performance plan for a limited time.
Clause 658 provides that a water authority's performance plan may be
modified and outlines the process for doing this.
Division 5--Tax equivalents manual for category 1 water authorities
Clause 659 provides that the Treasurer may issue a tax equivalents
manual to category 1 water authorities. A tax equivalents regime is
consistent with the concept of `competitive neutrality' which is the term
used to describe the process which ensures that government businesses are
competing on equal terms with their competitors. A tax equivalents manual
may require a category 1 water authority to pay tax equivalents to the
Minister for payment to the consolidated funds.
Division 6--Dividends payable by category 1 water authorities
Clause 660 set out the procedure and the requirements for determining
the dividend to be paid by a category 1 water authority for a financial year.
Dividend payments to the State are consistent with the concept of
`competitive neutrality'.
Clause 661 sets out the procedure and requirements for payment of an
interim dividend.
Clause 662 provides for the Minister's discretion to be used regarding
the dividend payable for the financial year in which a water authority
becomes a category 1 water authority.
Clause 663 provides for the Minister's discretion to be used regarding an
interim dividend payable for the financial year in which a water authority
becomes a category 1 water authority.
Clauses 664--674 not used. See footnote 2 at end of chapter 1.
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PART 6--RESERVE POWERS OF MINISTER AND
TREASURER
In order to ensure that the State retains the power to protect the public
interest, the Minister, and in some cases the Minister and the Treasurer will
have specific reserve powers, for example, to give directions in the public
interest and to notify the board of public sector policies.
Clause 675 provides a reserve power for the Minister to notify a water
authority in writing of a public sector policy that is to apply to the water
authority if the Minister is satisfied that it is necessary to give the
notification in the public interest.
Clause 676 provides for the Minister to give a water authority a written
direction if the Minister is satisfied that, because of exceptional
circumstances, it is necessary to give the direction in the public interest.
Clause 677 enables the Minister and Treasurer to give a written joint
direction to a category 1 water authority, to support the restructuring of the
water industry, or help or give effect to the objects of the Bill. This
provision is intended to deal with transitional issues and as such will expire
3 years after it commences.
Clause 678 provides that should a water authority be given a Ministerial
direction(or a joint direction of the Minister and the Treasurer), that would in
the opinion of the authority cause it to become insolvent, the authority
should notify the Minister of its suspicions immediately. If the Minister
(and the Treasurer when the direction has been a joint direction) is satisfied
that the authorities suspicion is well founded, then the Minister (and
Treasurer where relevant) must revoke the initial direction.
Clauses 679--689 not used. See footnote 2 at end of chapter 1.
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PART 7--AMALGAMATING, DISSOLVING AND
TRANSFERRING FUNCTIONS OF WATER
AUTHORITIES
This part provides a process by which a water authority may be
dissolved, its assets and liabilities dealt with, its area abolished and to
provide for the amalgamation with another water authority. A water
authority may be dissolved for a number of reasons, including for the
purpose of converting to an alternative institutional structure such as a
company or trust.
Division 1--Amalgamating or dissolving water authorities
Clause 690 enables the amalgamation of 2 or more water authorities by
regulation. The new amalgamated water authority may adopt part or all of
the area of the former water authorities or may be formed without an area.
Clause 691 provides that a water authority may be dissolved for a
number of reasons. A water authority and/or area may be dissolved by
regulation for the purpose of:
· Converting the water authority to an alternative institutional
structure;
· Terminating the water authority because all of its functions have
been transferred to a local government (which includes a joint
local government);
· Appointing the chief executive to perform the water authority's
functions; and
· Terminating the functions of the water authority as they are no
longer required by the community.
Clause 692 provides that before a regulation dissolves a water authority
or amalgamates water authorities, the chief executive must publish notice of
the proposed amalgamation or dissolution.
Clause 693 sets out the mandatory contents of the notice of proposed
amalgamation or dissolution required under the previous clause.
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Clause 694 requires the chief executive to consider submissions
regarding a proposed water authority amalgamation or dissolution prior to
amalgamation or dissolution occurring. The chief executive only has to
consider those submissions that were properly made.
Clause 695 provides that a water authority may request its dissolution to
enable it to convert to an alternative institutional structure. A water authority
with an area may only request its dissolution for the purpose of converting
to an alternative institutional structure, after a special resolution of the water
authority's board and an affirmative special ballot of ratepayers. A water
authority without an area can request its dissolution for the purpose of
converting to an alternative institutional structure after a special resolution of
the water authority's board. The water authority's board must make a
written request for conversion to the chief executive. The written request
must specify the particulars of the proposed conversion.
Clause 696 provides that prior to dissolving a water authority for the
purposes of converting it to an alternative institutional structure, the new
entity must be established. In addition, the Minister and the Treasurer must
be satisfied that the State has obtained satisfactory indemnity for civil
liabilities and appropriate consideration for the transfer of the authorities
assets to the new entity.
Clause 697 provides that the State may recover from the water authority
the cost of publishing a notice about its proposed amalgamation or
dissolution.
Division 2--Transferring water authority's functions to local
government
Clause 698 provides that a water authority and a local government may
agree to the transfer of all or part of the authorities functions to the local
government and outlines the matters to be considered in deciding how to
implement the proposed transfer.
Clause 699 provides that, the following agreement on how to implement
the proposed transfer, the water authority and the local government must
give the Minister and the Treasurer a joint report on the agreement and the
proposed transfer. This clause also specifies matters to be included in the
report.
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Clause 700 provides that a regulation may approve an agreement to
transfer a water authority's functions to a local government. Before the
regulation is made approving the agreement, the Minister and the Treasurer
must consider the report, the financial and other implications for the state
and the authority's financial viability.
Prior to the regulation being made the local government may be required
to pay the State considered for the assets being transferred to it. This clause
also provides that the requirement to pay consideration for transferring
assets to a local government does not apply to the Gladstone Area Water
Board.
Division 3--Effect of amalgamating, dissolving, converting to alternative
institutional structure, and transferring functions to local government
Clause 701 sets out definitions to be used in division 3.
Clause 702 provides for the vesting of assets, rights and liabilities of a
former water authority in the new entity on the changeover day (a term
defined in the previous clause).
Clause 703 provides for any outstanding legal proceedings by or against
the water authority on the changeover day to continue and be finished by or
against the new entity.
Clause 704 provides for the existing employees of a water authority to be
employees of the new entity in the event of an amalgamation of a water
authority or the conversion to an alternative institutional structure.
Clause 705 provides that the State will take over any civil liability that, at
law, can not be transferred from the water authority to the new entity.
Clauses 706--716 not used. See footnote 2 at end of chapter 1.
PART 8--MISCELLANEOUS
Clause 717 provides that the State can recover specified costs incurred as
a result of establishing a water authority.
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Clauses 718--738 not used. See footnote 2 at end of chapter 1.
CHAPTER 5--INVESTIGATIONS,
ENFORCEMENT AND OFFENCES
PART 1--INVESTIGATION MATTERS
Division 1--Authorised officers
Specific powers are set out under this chapter to assist the chief executive
and the regulator to achieve the purposes of the Act.
Division 1 sets out provisions for the appointment and qualifications of
authorised officers and their functions and powers.
Clause 739 empowers the chief executive, and the regulator where
applicable, to appoint a person as an authorised officer if the person has the
necessary expertise and experience.
Clause 740 sets out the functions and powers of authorised officers. An
authorised officer may collect information, conduct investigations and
inspections to monitor and enforce compliance with the Bill or the
Integrated Planning Act 1997 as far as that Act relates to a development
condition and works associated with the taking and interfering with water.
The reference to development conditions allows an authorised officer to
conduct investigations and monitor and enforce compliance with respect to
those development conditions imposed by the chief executive as an
assessment manager or referral agency--in relation to works associated
with the taking and interfering with water, a referable dam or extraction of
quarry materials. The functions and powers of an authorised officer are
subject to the direction of the chief executive or the regulator. The powers
may also be limited by a regulation or under a condition of appointment or
by notice given by the chief executive or the regulator. This provision is
modelled on section 130 of the Environmental Protection Act 1994.
Clause 741 states that the authorised officer only holds the position on
the conditions stated in the instrument of appointment. The appointment is
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only for a term and when that term expires the authorised officer is no
longer authorised. The officer may resign from the appointment by
submitting a signed notice of resignation.
Clause 742 states that an authorised officer must be given an identity card
and provides details about the identity card.
Clause 743 provides that if a person ceases to be an authorised officer,
they must return their identity card to the chief executive or the regulator as
soon as practicable, but within 15 business days, unless they have a
reasonable excuse.
Clause 744 provides that an authorised officer may only exercise powers
if the officer first produces an identity card to a person or has it displayed so
that it is clearly visible to the person. If the authorised officer cannot
produce the identity card they must produce it at the first reasonable
opportunity.
Division 2--Powers of entry of authorised officers
This division provides for where an authorised officer may enter land
without consent.
Clause 745 defines land for this division to mean a parcel of land other
than the part on which there is erected a building or structure that is a
dwelling place or being used, at the material time, as a dwelling place.
Authorised officers cannot enter a dwelling house without consent.
Clause 746 provides for a specified power of entry on land by an
authorised officer. This clause permits an authorised officer to enter land of
an owner of land authorised under the Bill:
· to take, interfere with or use water to read any device used to
record the taking of water, calculate or measure water taken by
other means, check the accuracy of a device or replace or repair a
device and ensure the conditions of the authorisation or the
provisions of a plan under the Bill are being complied with; and
· to take, interfere with or destroy other resources (for example,
quarry materials) to calculate or measure the resource taken,
interfered with or destroyed and ensure the conditions of the
authorisation are being complied with.
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In addition this clause permits an authorised officer to enter land at any
reasonable time, where an activity mentioned under clause 311 in
relation to bore drilling is being carried out to ensure compliance with
the Bill.
In addition this clause permits an authorised officer to enter land, at any
reasonable time to ascertain if the Integrated Planning Act 1997 is
being complied with so far as that Act relates to a development
condition. This permits an authorised officer to enter land monitor
compliance with development conditions in relation to, for example,
the removal of riverine quarry materials, works for taking and
interfering with water or a referable dam.
Clause 747 permits an authorised officer to enter land to collect
information for specified purposes. The purposes include:
· reading and monitoring the quantity of water and taking samples
as part of the resource management obligations of the State;
· calculating and measuring other resources (for example, quarry
materials) and taking samples of the resources; and
· constructing monitoring equipment (monitoring equipment is
further defined in the clause).
· measuring the health of watercourses, lakes, springs and aquifers.
In addition this clause permits an authorised officer to enter land or other
land in relation to a dam or referable dam for:
· inspecting a dam or a referable dam and any records about a
referable dam; and
· ascertaining the impact a failure of a dam or referable dam would
have; and
· ascertaining if there are factors likely to cause a failure of a dam or
referable dam; and
· if a failure impact assessment of the dam or referable dam should
be requested.
Clause 784 provides for a person bringing a proceeding in the Supreme
Court or the District Court for 1 or more of the following orders detailed.
Subclauses (2)-(4) state where the proceeding may only be brought by
either the regulator or a local government. In these instances, it is the
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regulator or a local government which regulates these matters under the Bill.
Subclause (5) provides that a person may bring a proceeding under
subclause (1)(a) whether or not any right of the person has been, or may be,
infringed by, or because of the commission of the offence.
Subclause (6) requires every person, other than the chief executive or his
or her representative, to notify the chief executive of the commencement of
any proceedings under clause 784 within one week.
Clause 749 permits an authorised officer to enter a place for a purpose
other than those detailed in clauses 746, 747 or 748. This is only permitted
if the occupier consents to the entry, or if it is a public place and it is open to
the public, or the entry is authorised by a warrant or if it is a place of
business related to the Bill and the entry is made when the place is open for
entry. Consent or a warrant is not required to enter a public place or place of
business during business hours. For the purpose of asking for consent to
enter, an authorised officer may enter the place without the occupier's
consent or a warrant.
Division 3--Procedure for entry
Division 3 sets out the procedure for entry into a place and matters
pertaining to the issuing of warrants.
Clause 750 sets out the procedure the authorised officer must follow
when intending to enter a place with consent.
Clause 751 sets out the obligations of an authorised officer when making
application to a magistrate for a warrant for a place.
Clause 752 provides that a magistrate may issue a warrant and the details
to be stated in the warrant.
Clause 753 provides for circumstances where a special warrant is
required.
Clause 754 sets out the obligations of an authorised officer if the officer
intends to enter a place under a special warrant. This aims to safeguard a
person's privacy and ensures the person is given a clear explanation of the
authorised officer's powers under the warrant.
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Division 4--Powers of authorised officers after entering a place
Division 4 sets out the powers of authorised officers after entering a
place.
Clause 755 sets out the general powers of an authorised officer for
monitoring or enforcing compliance with the Bill after entering a place, if
consent is given to enter a place or entry is otherwise authorised.
Clause 756 creates an offence where a person fails to give reasonable
help to an authorised officer.
Clause 757 creates an offence where a person fails to give requested
information to an authorised officer.
Division 5--Power to obtain information
Division 5 sets out the powers of authorised officers in relation to
obtaining information.
Clause 758 provides a power to an authorised officer to require a name
and address.
Clause 759 creates an offence where a person fails to provide a name and
address to an authorised officer without a reasonable excuse. However, if it
is proved that the person did not commit an offence against the Bill, they
have not committed an offence against this clause.
Clause 760 provides a power to an authorised officer to require
production of documents issued to the person under the Bill or a document
required to be kept by the person under the Bill.
Clause 761 creates an offence where a person fails to certify a copy of a
document unless the person has a reasonable excuse.
Clause 762 creates an offence where a person fails to produce a
document unless the person has a reasonable excuse. A reasonable excuse
may be that the document production might tend to incriminate the person.
Clause 763 provides a power to an authorised officer to require the
person to give information if an offence has been committed against the Bill
and a person may be able to give information about the offence.
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Division 6--Compensation for damage caused when exercising power
Division 6 sets out a procedure to be used by an authorised officer when
damage is caused when exercising powers under the Bill. It also provides
for a person to claim compensation as a result of damage.
Clause 764 sets out the procedure an authorised officer must follow
when damage is caused by exercising a power under the Bill.
Clause 765 states that a person may claim compensation from the State if
they incur loss or expense as a result of an authorised officers actions under
subdivisions 2 and 4. Compensation may be claimed and ordered to be
paid in a proceeding brought in a court for the recovery of the amount of
compensation claimed or for an offence against the Bill which is brought
against the person claiming compensation.
Clauses 766--777 not used. See footnote at end of part 1.
PART 2--ENFORCEMENT MATTERS
This part sets out matters pertaining to compliance notices and
enforcement by civil remedies.
Division 1--Show cause and compliance notices
Clause 778 provides for when the regulator may give a show cause
notice. If the regulator proposes to conduct a spot audit of a strategic asset
management plan or give a service provider a compliance notice, the
regulator must first give the service provider a show cause notice. The
show cause notice invites the service provider to show cause why the spot
audit should not be conducted or the compliance notice should not be given.
Clause 779 states the general requirements of a show cause notice.
Clause 780 provides for when the chief executive, regulator or authorised
officer proposes to give a compliance notice in relation to contravention of
provisions of the Bill. The chief executive, regulator or authorised officer
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may give a compliance notice, generally in relation to a contravention of a
provision under the Bill. However the regulator may only issue a
compliance notice to a service provider if, after considering all
representations made by the service provider about the show cause notice
within the time stated in the notice, the regulator still believes it is
appropriate to give the compliance notice (See clause 778).
Clause 781 sets out the general requirements of a compliance notice.
Clause 782 provides that the person must comply with a compliance
notice unless they have a reasonable excuse.
Clause 783 provides that the chief executive or the regulator may take the
action under the compliance notice if the person fails to comply with the
compliance notice. Subclauses (2) and (3) apply where the chief executive
has issued a notice under clause 494(2) requiring stated action in respect of a
referable dam and there has been non-compliance with the notice. The chief
executive may, as an alternative to carrying out the stated action, take any
action necessary to prevent or minimize the impact of the failure of the dam.
For example, delay in complying with the required remedial action may lead
to such a risk of failure of the dam, that decommissioning or removal of the
dam is necessarily now required. Subclause (4) provides that any
reasonable costs or expenses incurred by the chief executive or regulator in
taking action may be recovered by the chief executive or regulator as a debt
owing to it by the person who contravened the compliance notice.
Division 2--Enforcement orders
Clause 784 provides for a person bringing a proceeding in the Supreme
Court or the District Court for 1 or more of the following orders detailed.
Subclauses (2)--(4) state where the proceeding may only be brought by
either the regulator or a local government. In these instances, it is the
regulator or a local government which regulates these matters under the Bill.
Subclause (5) provides that a person may bring a proceeding under
subclause (1)(a) whether or not any right of the person has been, or may be,
infringed by, or because of the commission of the offence.
Clause 785 provides that a person may bring a proceeding under clause
784(1) on their own behalf or in a representative capacity.
Clause 786 provides that a court may make an interim enforcement order
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pending a decision of the proceeding if the court considers it to be an
appropriate measure. The order may be subject to condition including
requiring the applicant to give an undertaking to pay cost if the proceeding is
unsuccessful.
Clause 787 provides for a person bringing a proceeding for an
enforcement order without notice to the other party and the court may,
without limiting the court's equitable jurisdiction, grant the order including
with conditions or for a limited period.
Clause 788 provides that the court may make enforcement orders if the
court is satisfied the offence has been committed or will be committed
unless restrained. If the court is satisfied there has been an offence, the
court may make an enforcement order even where there has been no
prosecution for the offence under division 2. The court may also an order
for exemplary damages. The court may have regard to an impact on water
available to other water entitlement holders and natural ecosystems,
resulting, or likely to result, because of the commission of the offence and
any financial saving or other benefit the person who committed the offence
received or is likely to receive because of the offence. The exemplary
amount must be paid to the consolidated fund.
Clause 789 provides for the matters an enforcement or interim
enforcement order may direct a person to do.
Clause 790 provides details for when the court may exercise its power to
make an enforcement or interim enforcement order to stop or not to start an
activity.
Clause 791 provides for contributing to the cost of a proceeding brought
in a representative capacity.
Division 3--Costs for proceedings under division 2
Clause 792 provides that each party to a proceeding under division 2
must pay their own costs, subject to special circumstances where the court
may order costs as it considers appropriate.
Subclause (3) confirms that in addition to any order in respect of costs,
the court may also make any order it decides appropriate to compensate a
party for loss or damage suffered as a result of commencement of a
proceeding that the court determines was commenced to delay or obstruct
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an activity or other matter, or finds to have been frivolous or vexatious.
Clauses 793--807 not used. See footnote at end of part 1.
PART 3--OFFENCES
Division 1--Offences for chapter 2
Clause 808 creates an offence for a person to take, supply or interfere
with water without an authority under the Bill. The maximum penalty
provided for this offence is substantial because the penalty must be a
realistic deterrent in circumstances where sustainable management of the
resource is required and, as the value of water is increasingly recognised, the
temptation to take, supply or interfere with water without authority will
increase.
Clause 809 creates an offence for a person to use water contrary to a
water use plan that is made for an area. The maximum penalty provided for
this offence is substantial because the penalty must be a realistic deterrent to
ensure that water is not used in a way that puts land and water resources at
risk of degradation.
Clause 810 creates an offence for a person to use water on land contrary
to any land and water management plan that has been approved for the land.
The maximum penalty provided for this offence is substantial because the
penalty must be a realistic deterrent to ensure that water is not used in a way
that puts land and water resources at risk of degradation.
Clause 811 creates an offence for tampering with a device that is required
to measure the volume of water taken, or the rate at which water is taken, or
the time for which water is taken. A "device" in relation to this offence is
broad and would include facilities such as a water meter, an event recorder
or a weir board.
Clause 812 creates an offence for a person to contravene the conditions
of a water allocation, an interim water allocation, water licence or water
permit.
Clause 813 creates an offence for a person to contravene the conditions
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of a resource operations licence, an interim resource operations licence or an
operations licence. If the licence has already been cancelled, a person cannot
proceed with a further action under this provision.
Clause 814 creates an offence for the destruction of vegetation, the
excavation or the placing of fill in a watercourse, lake or spring unless
authorised by a permit under the Bill. A number of situations are given for
which a permit is not required for these activities. A permit is not required
for the destruction of vegetation, excavation or placing a fill, for example,
for activities on lakes or springs wholly contained on a person's property,
activities associated with works or operations authorised under other parts
of the Act or the Integrated Planning Act 1997 and the works of river
improvement trusts. A permit for the destruction of vegetation is not
required, for example, for works of electricity boards, activities associated
with the harvesting of forest products, activities undertaken in emergency
situations, and any activities identified by regulation as not requiring a
permit and to protect property and provide for emergency access.
Protecting property my include, public infrastructure. Providing for
emergency access may include, for example, the maintenance of emergency
access and trafficability of State controlled roads and railways. A court may
order a person convicted of an offence under this clause to compensate the
State for the cost of any remedial work or rehabilitation, in addition to any
penalty imposed.
Clause 815 provides for offences for removing quarry materials without
an allocation notice or in non-compliance with the conditions of an
allocation notice. Subclause (3) provides that on conviction for an offence
for unlawfully removing quarry material, the court in addition to imposing a
penalty may order the offender to pay a royalty at the rate prescribed under a
regulation.
Clause 816 provides for offences for persons, carry out drilling activities,
who are not licensed as required under chapter 2 part 10. Subclause (1) will
not apply:
· to an unlicensed or inappropriately licensed person who is
carrying out water bore drilling activities under the constant
physical supervision of a water bore driller appropriately licensed
under chapter 2, part 11; or
· to an individual carrying out an activity under the Petroleum Act
1923 or the Mineral Resources Act 1989 if the activity would not
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result in a water bore being left as a functional bore for the supply
of water at the end of the activity.
Clause 817 provides for an offence for an individual who is
decommissioning a water bore under subclause 8168(2)(b) and fails to
comply with the standards prescribed under a regulation.
Clause 818 provides that it is an offence for a licensed water bore driller
to fail to carry out a water bore drilling activity in accordance with any
condition for a licence, including any codes or specifications referred to in
the conditions of the licence. It also creates as an offence, the carrying out
of water bore activity if the licensee is not licensed to carry out that particular
type of water bore drilling activity. For example, a water bore driller with a
class 1 licence will commit an offence against the Act if he or she drills a
water bore in a multiple aquifer as this is beyond the authorisation of a class
1 water bore drilling licence. Only drillers licensed for the type of works
proposed and endorsed for the construction method used may drill, deepen,
enlarge or case a water bore, or remove, replace, alter or repair the casing,
lining or screen of a water bore or decommission a water bore.
Clause 819 creates an offence for a person to advertise in relation to
water bore drilling activities in a way that is false or misleading or in a way
that holds the person out as willing to undertake drilling activities for which
the person is not licensed.
Clause 820 provides for an offence where a person, as a single operation,
takes water as an agent for 2 or more water entitlement holders under water
allocations not managed under a resource operations licence unless the
person holds an operations licence.
Division 2--Offences for chapter 3
Clause 821 makes it an offence to supply services unless the owner of
the infrastructure is registered as a service provider for the service.
Clause 822 makes it an offence to connect to a service provider's
infrastructure without the service provider's written consent.
Clause 823 makes it an offence to interfere with a service provider's
infrastructure without the service provider's written consent.
Clause 824 creates offences relating to discharging trade waste or
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prohibited substances into a service provider's infrastructure.
Division 3--General offences
Clause 825 creates an offence for a person to make a statement to an
authorised officer that the person knows to be false or misleading in a
material way.
Clause 826 creates an offence for a person to give an authorised officer a
document that the person knows is false or misleading in a material way.
Subclause (2), however, clarifies that subclause (1) does not apply if, when
the person gives the authorised officer the document, the person tells the
officer about the inadequacies of the document and, if possible, gives the
correct information.
Clause 827 creates offences for a person to obstruct an authorised officer
in the exercise of a power and for a person to pretend to be an authorised
officer. Subclause (4) defines "obstruction" for the purposes of this clause
to include assault, hinder, threaten and attempt to obstruct.
Clause 828 provides that executive officers of a corporation must ensure
the corporation complies with the Bill and matters about evidence and
defences open to an executive officer.
Clauses 829--850 not used. See footnote at end of part 1.
CHAPTER 6--REVIEWS AND APPEALS
PART 1--INTERPRETATION
This Part outlines the processes under which a decision made under the
Bill may be reviewed and, if necessary, appealed and heard by a court or
determined by arbitration. Appeals or arbitration are commenced by an
interested person seeking an internal review initially before proceeding to
court or arbitration. Where decisions are made, but the decisions have been
preceded by an extensive consultation and submission process, there will be
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no appeal (for example, proposed conversion of existing licences following
a water resource plan).
Clause 851 defines who an interested person is for the purposes of
lodging an application for review and appeal of a decision under the Bill.
An interested person is any person who receives an information notice or a
compliance notice under the Bill. Every person who makes a properly
made submission in response to public consultation procedures will receive
an information notice. Water resource plans are subordinate legislation and
the chief executive is therefore bound to follow the requirements of a water
resource plan. Resource operations plans are not subordinate legislation,
however, subclause 851(2) provides that appeals against decisions made
under a resource operations plan may only be appealed to the extent that the
decision is inconsistent with the plan or to the extent a different decision,
consistent with the plan, could have been made. For example, a plan may
establish a range within which existing licences to take water are to be
converted. In this case a water user may appeal against a conversion
decision, requesting a more favourable application of the conversion rule,
and the decision may have to be remade. The new decision could only ever
be amended to provide for a conversion within the range set in the resource
operations plan. Any extension of these appeal rights would mean that
following every appeal other water users in the same catchment could
potentially lose access to water as a result and security for existing water
entitlement holders could never be achieved. Subclause (3) refers to an
interested person as a person who has received an information notice or
compliance notice by the regulator. Subclause (4) refers to an interested
person as a rate payer or customer of a category 2 water authority who is
dissatisfied with the authority's decision about a rate or a charge made and
levied on the rate payer or customer. The decision referred to in this clause
is termed an `original decision'.
Clauses 852--860 not used. See footnote 2 at end of chapter 1.
PART 2--INTERNAL REVIEWS OF DECISIONS
Clause 861 provides that every appeal against an original decision must
first be by way of an application for an internal review. The purpose for this
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process is to enable interested parties a cost-effective option for having a
matter reconsidered before referring it to the court or arbitration.
Clause 862 provides that an interested person may, for an internal review
of an original decision, apply to the reviewer, who is the:
· chief executive for an original decision mentioned in
clause 851(1); or
· regulator for an original decision mentioned in clause 851(3); or
· chief executive officer of the category 2 water authority for an
original decision mentioned in clause 851(4).
Clause 863 provides for applying for an internal review of an original
decision. The application does not stay the original decision (Clause 865
deals with how an applicant may apply for a stay of the original decision).
The internal review must not be dealt with by the person who made the
original decision or by a person in a less senior office. However these
requirements do not apply to an original decision made by either the chief
executive or a category 2 water authority. Given the size of a category 2
water authority there may not in fact be another person senior to the decision
maker, able to review the original decision.
Clause 864 sets out the procedure for the reviewer to make a review
decision.
Clause 865 provides that an applicant for an internal review of an original
decision may apply to the court for a stay to delay the commencement or
operation of the original decision, while the appeal is being heard or the
matter arbitrated.
Clauses 866--876 not used. See footnote 2 at end of chapter 1.
PART 3--APPEALS
This part provides that appeals for certain reviewed decisions under the
Act will be to the Land Court, Magistrates Court or Planning and
Environment Court.
Clause 877 provides that if an interested person has applied for a review
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of an original decision, any interested person for that original decision may
appeal against the review decision to the relevant court detailed in
subclause (1). Paragraph (a) states that if the review decision relates to a
water bore driller's licence the relevant court is the Magistrates Court.
Paragraph (b) states that if the review decision relates to a matter in
clause 851(1) or (4) (other than about a water bore driller's licence) the
relevant court is the Land Court. Paragraph (c) states that if the review
decision relates to a matter in clause 489, 490 or 492 (failure impact
assessment and dam safety conditions) the relevant court is the Planning
and Environment Court.
Clause 878 sets out the procedure for starting an appeal.
Clause 879 provides that a stay of the decision appealed against or
arbitrated on may be granted on conditions as the court deems appropriate.
However, the review decision remains in place until the appeal is
determined or the arbitration determined or a stay granted.
Clause 880 provides for the appeal to be heard in accordance with the
rules of the relevant court to the appeal, or if the rules make no provision or
insufficient provision, in accordance with the directions of the judge. An
appeal is be way of rehearing, unaffected by the reviewer's decision.
Clause 881 provides that, if the judge or member is satisfied the appeal
involves a question of special knowledge and skill, the judge or member
may appoint 1 or more assessors to help the judge or member in deciding
the appeal.
Clause 882 sets out the powers of the court on appeal. Each party to an
appeal is required to pay its own costs unless a court determines otherwise
based on grounds set out in subclause 882(4). In addition to any order in
respect of costs, the court may also make any order it decides appropriate to
compensate a party for loss or damage suffered as a result of
commencement of a proceeding that the court determines was commenced
to delay or obstruct an activity or other matter, or finds to have been
frivolous or vexatious.
Clauses 883--890 not used. See footnote at end of chapter 1.
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PART 4--ARBITRATION
Clause 891 provides that an interested person who is dissatisfied with a
review of a decision about specified matters under Chapter 3 (but not
including provisions about failure impact assessment and assessment of
referable dams) may apply to the Queensland Competition Authority for
arbitration on the decision. The application will be made by way of a
dispute notice given to both the authority and the regulator. The dispute
notice must be given within 30 business days after the day the interested
person receives notice of the decision or the decision is taken to be made.
Clause 892 provides that, on receiving the dispute notice, the Queensland
Competition Authority must give an acknowledgement notice to both the
interested person and the regulator
Clause 893 provides that the interested person may withdraw the dispute
notice at any time before the authority makes a determination on the dispute.
Clause 894 clarifies that the parties to the arbitration are the interested
person and the regulator.
Clause 895 sets out matters relating to determination of the arbitration
dispute by the authority. The authority must make a written determination
in arbitrating on a dispute, and set out its reasons for making the
determination. The clause also provides that the authority is not required to
make a determination if it considers that the giving of the dispute notice was
vexatious, trivial, misconceived or lacking in substance.
Clause 896 provides that part 7 of the Queensland Competition Authority
Act 1997 applies to an arbitration under this Bill. Part 7 of the Queensland
Competition Authority Act 1997 sets out the process for the conduct of
arbitration proceedings. It should be noted that Schedule 4 of this Bill
consequentially amends the Queensland Competition Authority Act 1997, so
that Part 7 of that Act applies to an arbitration under the Water Bill 2000.
Clauses 897--917 not used. See footnote at end of chapter 1.
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CHAPTER 7--LEGAL PROCEEDINGS
PART 1--EVIDENCE
Clause 918 provides for this division to apply to a proceeding under the
Bill.
Clause 918A provides that a party to a proceeding under the Bill
(including an appeal, application for an enforcement order or any other
proceeding) may represent themselves or be represented by an agent
whether the party or the party's agent is legally qualified or not. This is
modelled on clause 4.1.13 of the Integrated Planning Act 1997.
Clause 919 provides that it is not necessary to prove the appointment or
the authority of the chief executive, the regulator or an authorised officer.
Clause 920 specifies that if a certificate contains any of the specified
matters, such as whether or not an authority was in force on a stated day, it
is considered to be evidence of the matter.
Clauses 921--930 not used. See footnote at end of chapter 1.
PART 2--PROCEEDINGS
Clauses 931 provides for proceedings for offences and jurisdiction of a
Magistrate. These clauses have been modelled on the Government Owned
Corporations Act 1993.
The clause provides that a proceeding for an offence against the Bill may
be instituted in a summary way under the Justices Act 1886. The
prosecution for an offence against the Bill must be commenced within
1 year after the commission of the offence or within 1 year after the offence
comes to the complainant's knowledge, but within 2 years after the offence
is committed.
The clause further provides the maximum penalty that may be imposed
on a summary conviction of a prescribed offence. A prescribed offence is
further defined in the dictionary.
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Clause 932 provides for a range of proceedings that may be brought by
the Attorney-General, a local government or regulator for offences against
various section of the Bill.
Clause 933 provides that a person may bring a proceeding under
clause 932(1) on their own behalf or in a representative capacity. However,
if a person is representing someone else they obtain either the consent of the
individual or if they are representing a body of person or a corporations they
must obtain the consent of the governing body.
Clause 934 provides that the Magistrates Court may make orders it
considers appropriate.
Clause 935 provides that if the proceeding is brought in a representative
capacity, the person on whose behalf the proceeding is brought may
contribute to, or pay, the legal costs and expenses incurred by the person
bringing the proceeding.
Clause 936 provides for responsibility for acts or omissions of a
representative.
Clauses 937--954 not used. See footnote at end of chapter 1.
CHAPTER 8--MISCELLANEOUS
PART 1--APPOINTMENT OF ADMINISTRATOR
Clause 955 provides the power for the Governor in Council to appoint an
administrator to operate infrastructure. Subclause (1) provides that the
clause applies if the Minister is satisfied that a service provider has not
complied with a compliance notice or is likely to stop supplying a registered
service and there is no other entity willing to take over the operation of all or
part of the service provider's infrastructure for the service or the chief
executive has cancelled a resource operations license. The Governor in
Council will appoint the regulator where the Minister is satisfied that a
service provider has not complied with a compliance notice or if there is no
other entity willing to take over the operation of the infrastructure where the
service provider is likely to stop supplying a registered service. The
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Governor in Council will appoint the chief executive or other appropriate
person where the chief executive has cancelled a resource operations license
or interim resource operations license.
The exercise of this power will be a measure of last resort to ensure
continuity of supply of services to customers of service providers or
continuity of supply of water to water entitlement holders or to ensure
compliance with conditions in a resource operations license. It is intended
that the appointment of the administrator will only be for an interim period
until another entity is able to take over the operations of the infrastructure.
Clause 956 outlines the effect of the administrator operating the
infrastructure.
Clause 957 provides for the effect of the appointment of an administrator
on the registration of the service provider. The registration is suspended
from the day the notice is published in the gazette until the withdrawal of the
appointment of the administrator is published in the gazette.
Clause 958 provides that the Governor in Council may withdraw an
administrator's authorisation by publishing a notice in the gazette.
Clauses 959--965 not used. See footnote 2 at end of chapter 1.
PART 2--RELATIONSHIP WITH INTEGRATED
PLANNING ACT 1997
This part deals with the relationship of the Bill and the Integrated
Planning Act 1997. Firstly, this part directs the considerations of the chief
executive, in the role of either the assessment manager or a referral agency,
for a development application under the Integrated Planning Act 1997. The
Act contains assessment and approval processes for the taking of riverine
quarry material, works associated with taking and interfering with water and
dam safety aspects for the construction and operation of a referable dam.
These processes, in so far as these relate to "development" within the
meaning of the Integrated Planning Act 1997, are to be replaced by IDAS
(Integrated Development Assessment System) and IDAS becomes the
mechanism for assessing and approving these matters. Secondly, this part
provides for certain prerequisites, obtained under the Bill, to support the
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making of a development application under IDAS.
Clause 966 provides for the assessment of a development application by
the chief executive in relation to operational work for the taking or
interfering with water; the removal of quarry material or operational work
that is the construction and maintenance of a referable dam. The chief
executive must assess a relevant development application against the
purposes of the Bill to the extent the purposes relate to the taking or
interfering with water, other resources, such as quarry material, or a
referable dam. Subclause (3) makes it clear that the considerations specified
in the Integrated Planning Act 1997 for consideration of an application by
an assessment manager or concurrence agency are not limited by the criteria
in the Bill.
Clause 967 provides that where development requires a water
entitlement, either the water entitlement, or alternatively, the written consent
of the chief executive permitting the application being made without
evidence of an entitlement, is a necessary pre-requisite for a valid application
under IDAS for the works for the taking or interfering with, water.
However subclause (4) provides that the chief executive may give, where
the chief executive is an assessment manager or concurrence agency for the
taking or interfering with water, an entitlement and a development permit or
concurrence agency response, as the case may be, at the same time.
Clause 968 applies in relation to works that are used, or could be used,
for the taking or interfering with water and for which a development permit
would be required under the Integrated Planning Act 1997. Whilst the Bill
separates the allocation of water from the works associated with the taking
or interfering with water, this clause carried over a current power under the
Act for the chief executive to direct such works to removed or modified if
necessarily required by the chief executive. Despite the Integrated Planning
Act 1997, the chief executive may issue a show cause notice as to why the
works should not be required to be modified or removed. If the chief
executive is still satisfied that the works should be removed or modified, the
chief executive may give the person a compliance notice requiring removal
or modification of the works. The person may appeal against the
compliance notice.
Clause 969 provides that evidence of an allocation for quarry materials
granted under the Bill, is a prerequisite for a development application under
IDAS for the removal of the quarry material. In addition, if the land, the
subject of the development application, is land leased under the Land Act
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1994, a further prerequisite is the written consent of the lessee to
arrangements about the route the applicant may use across the lessee's land
(or arrangements decided by a Magistrates Court).
Clause 970 provides that the allocation notice authorises the allocation
holder to access the material but does not authorise the holder to take the
quarry material. The power to take the quarry material will be provided
through an Integrated Planning Act 1997 development permit. An
allocation notice is a necessary pre-requisite for a valid development
application under IDAS to remove quarry material. A development permit
for the removal of quarry material is a reference to the categorisation of
assessable development in Item 6 of Schedule 8, Part 1 of the Integrated
Planning Act 1997. The removal of quarry material is related to
development that is a material change of use of premises for an
environmentally relevant activity (see section 63A of the Environmental
Protection Regulation 1994). There is scope for the chief executive to grant
the allocation notice at the same time as the development approval (if the
chief executive is the assessment manager) or as the concurrence response
(if the chief executive is not the assessment manager).
Compliance and enforcement arrangements for the quarry operation are
under the Integrated Planning Act 1997, including powers to stop an
unauthorised activity and to seek remediation for damage caused.
Clause 971 applies if a person makes a development application for the
construction and maintenance of a referable dam. An accepted failure
impact assessment by the chief executive, and if the person is required to be
a water entitlement holder to operate the dam, evidence that the person is a
water entitlement holder for the dam, are necessary pre-requisites for a valid
application under IDAS for the construction and operation of a referable
dam.
Clause 971A provides for when an appeal may be made to the Land
Resource Tribunal rather than the Planning Environment Court in relation to
certain development applications. This is to facilitate a more streamlined
appeal process for those mining activities that also require a development
approval in relation to assessable development that involves the Department
as a referral agency or assessment manager. In these circumstances, an
appeal in relation to both the mining authority under the Mineral Resources
Act 1989 and any assessable development referred to in items 3B and 3C of
Schedule 8 Part 1 of the Integrated Planning Act 1997 where the
Department is the assessment manager or referral agency will be heard in
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the Land and Resources Tribunal.
Clauses 972--983 not used. See footnote 2 at end of chapter 1.
PART 3--COMPENSATION
Clause 984 outlines the definitions that apply in this division.
Clause 985 provides for the payment of compensation under the Bill.
The clause does not affect compensation that may be paid under clause 765.
Clause 986 provides for an owner of a water allocation to be paid
reasonable compensation by the State, in the case of a change in the value of
the allocation and the change is made within 10 years after the water
resource plan is approved.
Clause 987 lists the circumstances in which compensation is not payable.
Clause 988 requires that a compensation claim must be given to the chief
executive within 6 months after the day the approval of the plan or the
amendment of the plan reducing the value of the water allocation.
Clause 989 outlines the time limits when the chief executive is deciding
and advising on a compensation claim.
Clause 990 provides for how the chief executive decides a claim for
compensation.
Clause 991 provides for the calculation of compensation based on the
difference between market values of the authority to take water immediately
before the change and immediately after. This amount can be adjusted after
regard to several matters has been undertaken.
Clause 992 outlines when compensation is to be paid.
Clauses 993--1003 not used. See footnote 2 at end of chapter 1.
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PART 3A--PROVISIONS ABOUT THE
CORPORATISED ENTITY
Clause 993A enables the corporatised entity to collect drainage rates, as
prescribed under a regulation.
Clause 993B exempts certain lands from drainage rates.
Clause 993C provides that overdue drainage rates bears interest at a rate
decided the chief executive of the department, provided that the rate of
interest is not larger than 15% or larger than another percentage prescribed
under a regulation.
Clause 993D provides that the chief executive of the department may
allow a discount for payment of a rate, provided that the discount is not
larger than 15% of the rate or charge or the percentage otherwise prescribed
under a regulation.
Clause 993E provides that the corporatised entity can recover any
overdue rate or charge together with interest owing. The corporatised entity
can only recover the rate from the person on whom the rate is made or
levied. For instance, if a property is leased and the rate is levied upon the
lessee then the authority cannot recover an overdue rate or charge from the
owner of the property.
Clause 993F provides for an exemption from the application of the
Freedom of Information Act 1992 in relation to certain activities of State
Water Projects in the event it is corporatised. State Water Projects is the
commercialised business unit in the department and was nominated as a
candidate government owned corporation on 25 May 2000. The exemption
in this clause in mirrored by an amendment to Schedule 2 of the Freedom
of Information Act 1992 found in Chapter 10 of the Bill.
PART 4--GENERAL PROVISIONS
Clause 1004 sets out the establishment, function and membership of a
referral panel.
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Clause 1005 provides that the Minister may appoint advisory councils, as
appropriate, to facilitate administration of the Bill. Advisory councils may
be established to advise on matters such as providing feedback on
guidelines prepared by the department, general water policy
recommendations, flood mitigation, referable dam safety and technical
standards.
Clause 1006 provides that a regulation may be made to declare the
downstream or upstream limit of a watercourse.
Clause 1007 provides for the notification of certain actions taken by the
chief executive to be made to the registrar of titles.
Clause 1008 provides for an exemption of stamp duty despite the Stamp
Act 1894 on the conversion of a water licence or an interim water allocation
to a water allocation under chapter 2.
Clause 1010 provides that the chief executive or the regulator must keep
documents and make them available for inspection and purchase by the
public.
Clause 1011 outlines the protection of officials from liability.
Clause 1012 provides that the Minister may delegate his or her powers
conferred by the Bill to an appropriately qualified public service officer or
employee.
Clause 1013 provides that the chief executive may delegate his or her
powers conferred by the Bill to an appropriately qualified public service
officer or employee.
Clause 1014 provides that the chief executive and the regulator may
approve forms for use under the Bill.
Clause 1015 provides that the Governor in Council may make
regulations under the Bill. Without limiting the scope of the subject material
for regulations, the clause details matters a regulation may be made about.
For example, a regulation may approve a code against which development
applications under the Integrated Planning Act 1997 may be assessed. In
addition, a regulation may state minimum standards for the design and
construction of water and sewerage infrastructure.
Clauses 1016--1036 not used. See footnote at end of chapter 1.
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CHAPTER 9--TRANSITIONAL PROVISIONS
AND REPEALS
PART 1--TRANSITIONAL PROVISIONS FOR
ALLOCATION AND SUSTAINABLE MANAGEMENT
Clause 1037 provides that if a local government had an authority to take
to interfere with water, it continues until it is replaced with a water
entitlement under this Bill. The intention of this clause is to continue all
existing orders in council and other authorities that local governments have
been granted over the years, but for which there is currently no instrument
(such as a licence) in existence.
Clause 1038 provides for water management plans made in accordance
with part 3A of the Act to be recognized as water resource plans under
chapter 2, part 3. The only such plan in existence is the Water Management
(Cooper Creek) Plan 2000. (Subordinate Legislation 2000 No. 27). The
reference to section 25K of the Act in the Water Management (Cooper
Creek) Plan 2000 is to be read as if it referred to section 57 of the Bill until
the plan is otherwise amended.
Clause 1039 provides for water management plans currently being made
in accordance with part 3A of the repealed Act to be recognized as water
resource plans currently being made under chapter 2, part 3. The public
notice of the proposed preparation of a water management plan under the
Act is taken to be a notice under clause 40 and a moratorium notice for the
proposed plan.
As these plans are already under development, clauses 39 and 41
requiring information reports and establishment of community reference
panels do not apply.
Clause 1040 provides for draft water management plans that have been
publicly notified under part 3A of the repealed Act to be recognized as draft
water resource plans publicly notified under chapter 2, part 3. As draft
plans have already been published, clauses 39 to 49 do not apply provided
the plan complies with the requirements as to the contents of a water
resource plan set out in clause 46. This includes a requirement that the plan
must advance the sustainable management of water.
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Water
Clause 1041 provides for the Water Allocation and Management Plan
(Fitzroy Basin) 1999, which has already been approved and released as a
final plan to be recognized as a water resource plan under chapter 2, part 3
that provides a framework for establishing water allocations. The plan may
be reprinted under the Reprints Act 1992 and may be amended to make it
consistent with the current drafting style without the need to advertise the
amendment under chapter 2, part 3.
Clause 1042 provides for water allocation management plans and flow
management plans currently being made to be recognized as water resource
plans currently being made under chapter 2, part 3. The public notice of the
proposed preparation of a water resource plan is taken to have been
published for each of the following plan areas:
· Barron Basin (incorporating a portion of the Mitchell Basin);
· Border Rivers;
· Logan Basin; and
· Pioneer Valley.
As these plans are already under development, clauses 39 and 41 do not
apply.
In the final draft water resource plan for the Border Rivers, priority may
be given (in relation to provisions about restricting the granting of new
entitlements to take or interfere with water or to amend existing entitlements
or in relation to water sharing) to water users in the plan area who have
constructed or started to construct works (within the definition of `started'
provided in the Bill) to take or interfere with overland flow water before 25
November 1999. Priority may also be given to water users with
entitlements to take or interfere with water the subject of the plan before 25
November 1999.
On 25 November 1999, the Minister made a public announcement about
an agreement between Queensland and New South Wales for future
management of water resources in the Border Rivers.
Any restrictions on future development in the Border Rivers will not
affect development of farm dams that store water for stock and domestic
purposes as this is authorised by the Bill in clause 20(3).
Clause 1043 provides that the draft WAMP for the Burnett Basin and the
draft WAMP for the Condamine-Balonne Basin both publicly released in
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Water
June 2000 are taken to be draft water resource plans for establishing water
allocations. As draft plans have already been published, clauses 39 to 49 do
not apply provided the plan complies with the requirements as to the
contents of a water resource plan set out in clause 46. This includes a
requirement that the plan must advance the sustainable management of
water.
In the final draft water resource plan for the Condamine-Balonne basin,
priority may be given to water users in specified areas, if those water users
have constructed or have started construction of works before the dates
provided in this clause.
The first relevant date is 14 June 2000 when the Minister made a public
announcement of the release of the draft Condamine-Balonne WAMP. The
draft WAMP proposes that limitations will be placed on the taking of
overland flow water in areas identified in the draft WAMP as areas to be
subject to overland flow restrictions.
The second relevant date is 14 August 2000 when the Minister made a
public announcement about any new water diversions from the
Condamine-Balonne river system. This refers to taking or interfering with
overland flow water in the whole of the plan area. It also refers to the
construction of any new works to take or interfere with water under an
existing licence or to take or interfere with overland flow water.
Any restrictions on future development in the Condamine-Balonne basin
will not affect development of farm dams that store water for stock and
domestic purposes as this is authorised by the Bill in clause 20(3).
Clause 1044 provides for the draft water management plan released for
the Boyne River Basin in May 2000 to be recognized as draft water resource
plans publicly notified under chapter 2, part 3 that provides a framework for
establishing water allocations. The overview report accompanying the draft
plan contemplated this proposal, which is to allow a resource operations
licence and water allocation to be issued in relation to the proposed raising
of Awoonga Dam. Again, the final plan will need to comply with the
requirements of chapter 2, part 3 with respect to the contents of a draft water
resource plan.
Clause 1045 provides for the draft water management plan currently
being prepared for the Atherton subartesian area to be taken to be part of,
and amalgamated with, the water allocation management plan being
prepared for the Barron Basin. This is required as the Atherton subartesian
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Water
area is wholly contained within the boundaries of the proposed Barron
Basin water allocation and management plan area. (Clause 38(2) requires
that there be only one plan for any part of Queensland).
Clause 1046 provides for a continuation of the declaration of subartesian
areas. A regulation establishing a subartesian are may specify the water
taking and works construction that is subject to regulation. This will allow
continuation of the existing regulatory arrangements for subartesian
underground water until water resource plans are completed. As water
resource plans are progressively developed the need for regulations to
declare subartesian areas will decrease.
Clause 1047 provides for transitional arrangements about existing land
and water management plans.
Subclause (1) provides that applications for approval of, or deferral of a
requirement for, a land and water management plan made before the
commencement of this clause shall be dealt with using the provisions of the
Act.
Subclauses (2) and (3) provide that land and water management plans or
deferrals approved under the Act or under subclause (1) are taken to be
approved under the Bill (clauses 77 and 82).
Subclauses (4) and (5) provide that plans or deferrals approved under the
Act take effect from the day they were originally approved.
Subclause (6) expressly saves the Guidelines for Land and Water
Management Plans Mareeba-Dimbulah Irrigation Area July 1999.
Clause 1048 provides transitional arrangements for existing applications,
licences and permits.
Subclause (1) provides that applications for licences and permits made
before the commencement of this clause shall be dealt with using the
provisions of the Act.
Subclause (2) provides that if part of the application under subclause 1 is
for a referable dam (eg a waterworks licence that may include dam safety
conditions), the criteria and failure impact assessment provisions outlined in
this subclause will be used to assess the conditions about the safety of the
dam.
Subclause (3) provides that any application about a referable dam under
the Act, that is less than 8m in height, does not have to address the criteria in
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Water
1048(2) or any criteria under the Act. To the extent the application refer to
safety conditions for referable dams, those parts of the application lapse.
For applications in areas where a plan has been approved, the decision
must be consistent with the approved plan and any inconsistent application
must be refused without publication of the application.
Subclause (7) provides that on commencement--
· If a waterworks licence has been granted under the Act or under
subclause (1) and is in force, the licence is taken to be a water
licence under the Bill in relation to the water component of the
licence and is taken to be a development permit for the works
component.
· If a waterworks licence has been granted under the Act or
under subclause (1) and is in force and the water component
has already become an interim water allocation, the works
component is taken to be a development permit.
· If a permit has been granted under the Act or under
subclause (1) and is in force and relates to a permit issued to
a department of the government for activities such as school
bores, the permit is taken to be a water licence under the Bill
in relation to the water component of the permit and is taken
to be a development permit for the works component.
· If a permit has been granted under the Act or under
subclause (1) and is in force and relates to a permit issued
for a period not exceeding 1 year, the permit is taken to be a
water permit under the Bill in relation to the water
component of the permit.
· If a permit has been granted under the Act or under
subclause (1) and is in force and relates to a permit issued to
a riparian land owner abutting a watercourse, lake or spring,
the permit ceases to exist in relation to the water component
of the permit and is taken to be a development permit for the
works component.
· If a permit has been granted under the Act or under
subclause (1) and is in force and relates to a issued to a
riparian land owner abutting a weir, barrage or dam, the
permit is taken to be a water licence under the Bill in relation
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Water
to the water component of the permit and is taken to be a
development permit for the works component.
· permit to take quarry material under section 58 of the Act -
the permit is taken to be an allocation notice and under
chapter 2, part 9 and conditions related to the removal of the
quarry are taken to be a development permit,
· riverine protection permit under section 71 of the Act - the
permit is taken to be a permit under chapter 2, part 8; and
· drillers licence - the licence is taken to be a water bore
drillers licence under chapter 2, part 10.
Subclause (8) provides that licences or permits mentioned in
subclause (5) and taken to be made under the Bill, are for the periods
originally granted under the Act.
Subclause (9) provides that for 1 year after the commencement
clauses 311 and 818 do not apply to a person carrying out the drilling
activities for a subartesian bore in an area that was not a declared subartesian
area under the Act.
Clause 1048A provides that applications made under the Act about
licences or permits to take water or increase the volume, rate or times when
water may be taken, in relation to any water managed by State Water
Projects, must be refused without publishing. The chief executive will not
grant any further licences for water managed by State Water Projects.
Applications for temporary transfers of water managed by State Water
Projects must also be refused.
Clause 1048B provides that applications for temporary transfers of
water, other than water managed by State Water Projects, must be decided
under the Act and if approved the temporary transferee is to be given a
permit, taken to be a water permit under chapter 2 part 6.
Clause 1048C provides that from the date of assent to the date chapter 2
part 6 commences, any application to amend a licence to attempt to add
other non contiguous land to that licence or any land owned by another
person cannot be approved. The practice of shifting water from location to
location through the amendment of existing licences can have a detrimental
affect on water and natural ecosystems and for this reason any amendments
that have this effect are to be refused until water resource plans are approved
and proper transfer rules are established.
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Water
Clause 1048D provides that from the date of assent to the date chapter 2
part 6 commences, plans approved under chapter 2, part 3 for water must be
considered in any decision making process involving that water.
Clause 1048E provides that holders of interim water allocations must not
apply for approval to temporarily transfer the allocation under the Act. Any
temporary transfer arrangements will be a matter for the interim resource
operations licence holder and the interim water allocation holder, within any
constraints provided by the interim resource operations licence.
Clause 1048F saves the Declaration of Downstream Limits Notification
(No.1) 2000 for a period of 2 years after the date the Bill is assented to.
Clause 1048G provides that licences issued under the Act may be
amalgamated, subdivided or amended with the consent of all entitled under
the licences. This will allow the full benefit of the separation of water
licences from works to be achieved by simplifying licence holdings.
Clause 1048H provides that until chapter 2 part 6 commences, interim
water allocations managed in former irrigation areas under the Act are to be
dealt with as if they were a part 9 licence under the Act and other interim
water allocations are to be dealt with as if they were a part 4 licence under
the Act. This clause does not apply to transfers of interim water allocations
by interim resource operations licence holders as those transfers are dealt
with under clauses 191 and 192, or to transfers of interim water allocations
under a regulation made under 192A.
Clauses 1049--1059 not used. See footnote at end of chapter 1.
PART 2--TRANSITIONAL PROVISIONS FOR
SERVICE PROVIDERS, SERVICE AREAS, FAILURE
IMPACT ASSESSING OF DAMS AND FLOOD
MITIGATION
Division 1--Service providers and service areas
Clause 1060 provides that existing owners of infrastructure which
provide water or sewerage services will not be in breach of sections 370
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Water
(requirement to be registered) or 821 (offence to supply services without
being registered), if the infrastructure owner has applied for registration
before 1 January 2001.
Clause 1061 provides that existing service providers must comply with
the requirements of part 3, divisions 1 to 3, of the Bill as follows:
· within 2 years for a large service provider;
· within 3 years for a medium service provider; and
· within 4 years for a small service provider (if the small service
provider has not been exempted under division 5 of part 3)
"Large service provider", "medium service provider" and "small service
provider" are defined in the Dictionary at schedule 4 of the Bill.
Clause 1062 provides that part 3, division 4 (water for firefighting)
applies to a local government, water board or other person as if they were a
registered service provider on the commencement of this section.
Clause 1063 provides that an area that has been declared by resolution of
a local government under the Sewerage and Water Supply Act 1949 to be a
water supply area or sewered area prior to the commencement of this
section is a service area under this Bill.
Clause 1064 clarifies that, for the purposes of chapter3, part 4,
divisions 3 and 4, the local government which declared a water supply area
or a sewered area under the Sewerage and Water Supply Act 1949 is to be
the service provider for the area.
Division 2--Failure impact assessing for dams
Subdivision 1--Hazardous dams
Clause 1065 provides for how a licence, with referable dam safety
conditions issued under the Act for a dam containing hazardous waste, will
be transitioned at the commencement of this clause. On the commencement
of this clause, a hazardous waste dam is an environmentally relevant activity
within the meaning of Environmental Protection Act 1994 and any existing
referable dam safety conditions that applied to its licence will be taken to be
conditions of the dam's environmental authority or development approval
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Water
as the case may be.
Subdivision 2--Other dams
Clause 1066 provides that the provisions of chapter 3, part 6, division 1
(other than clauses 483(1) and 486) apply to each failure impact assessment
under this subdivision in relation to existing dams, not previously licensed
as a referable dam under the repealed Act. This ensures that all relevant
provisions about failure impact assessment apply to a dam caught by the
transitional requirements to be failure impact assessed.
Clause 1067 provides for how existing dams, unlicensed as a referable
dam under section 43 of the Act at the commencement of this clause, will
be transitionally failure impact assessed. At the commencement of this
section, an owner of an existing unlicensed dam, except those dams
mentioned in a prescribed regulation, (with a prescribed failure impact
rating) must have the dam failure impact assessed within 1 year, if the dam
is:
(a) more than 8 m in height and has a storage capacity of more than
500 ML; or
(b) more than 8 m in height and has a storage capacity of more than
250 ML and a catchment area that is more than 3 times its
maximum surface area at full supply level.
The prescribed regulation will mention those existing dams for which the
chief executive is satisfied of, and has accepted, a failure impact rating of
either a category 1 or category 2 rating, which is to apply at the
commencement of this clause.
Clause 1068 provides for how specific existing dams, licensed as a
referable dam under section 43 of the repealed Act, will be transitioned.
These dams will not be required to be failure impact assessed at the
commencement of this clause. The purpose of this clause is to transition a
licence, including the conditions about the safety of the dam, issued under
the repealed Act for a referable dam, within the new threshold size and
capacity dimensions under the Bill, as a development permit under the
Integrated Planning Act 1997. It is noted that under the Act, a licence for a
referable dam is the same type of licence issued under Part 4 of the Act for
all other dams or weirs. Where applicable, a licence issued under Part 4 of
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Water
the Act will contained conditions about the safety of the dam in addition to
other resource management conditions.
The prescribed regulation will mention those existing licensed dams for
which the chief executive is satisfied of, and has accepted, a failure impact
rating of either a category 1 or category 2 rating, which is to apply at the
commencement of this clause. A dam mentioned in the prescribed
regulation is taken to:
· be a referable dam; and
· have the failure impact rating shown for the dam in the regulation;
and
· the licence, including the conditions about the safety of the dam, is
taken to be a development permit as defined under the Integrated
Planning Act 1997, subject to the conditions about the safety of
the referable dam.
Clause 1069 provides for how certain existing dams, licensed as a
referable dam under section 43 of the Act, and not mentioned in a
prescribed regulation, will be transitioned. These dams will not need to be
failure impact assessed at the commencement of this clause. The purpose
of this clause is to transition a licence, including the conditions about the
safety of the dam, issued under the Act for a referable dam, within the new
threshold size and capacity dimensions under the Bill, as a development
permit under the Integrated Planning Act 1997.
At the commencement of this clause, an existing licensed dam, except a
dam mentioned in the prescribed regulation, where the dam is:
(a) more than 8 m in height and has a storage capacity of more than
500 ML; or
(b) more than 8 m in height and has a storage capacity of more than
250 ML and a catchment area that is more than 3 times its
maximum surface area at full supply level;
the dam is taken to be a referable dam under the Bill and the licence,
including the conditions about the safety of the dam, is taken to be a
development permit as defined under the Integrated Planning Act 1997,
subject to the conditions about the safety of the dam.
The owner of a dam subject to this clause must also ensure that a failure
impact assessment is carried out within 5 years after the commencement of
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Water
the Bill and given to the chief executive. Accordingly the owner of the dam
will need to comply with clauses 483(6) and (7) about the requirement for a
5 yearly failure impact assessment.
Where an existing licensed dam is failure impact assessed and assessed
as not having a category 1 or category 2 failure impact rating, the dam is
taken to be no longer referable and the development permit is no longer
taken to be subject to the conditions about the safety of the dam.
Clause 1070 provides for how specific existing dams, licensed as
referable dams under section 43 of the Act, will be transitioned. These
dams will no longer be regulated under the Bill as the dam does not fall
within the new threshold size and capacity dimensions under the Bill. On
the commencement of this clause, the licence conditions about the safety of
the dam of an existing licensed dam that is not:
(a) more than 8 m in height and does not have a storage capacity of
more than 500 ML; or
(b) more than 8 m in height and does not have a storage capacity of
more than 250 ML and a catchment area that is not more than 3
times its maximum surface area;
will no longer apply.
Division 3--Flood mitigation
Clause 1071 provides that a flood mitigation manual approved under the
Act or taken to be a flood mitigation manual approved under the repealed
Act are taken to be the flood mitigation manual approved by the chief
executive under part 6.
Clauses 1072--1082 not used. See footnote at end of chapter 1.
PART 3--TRANSITIONAL PROVISIONS FOR
WATER AUTHORITIES
Clause 1083 provides for the continuation of former water areas and
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Water
former water boards in existence immediately before the commencement of
the Bill. All water authorities with the exception of Mt Isa Water Board are
taken to be category 2 water authorities.
Clause 1084 provides for the continuation of the Gladstone Area Water
Board as established under the Gladstone Area Water Board Act 1984, but
does not limit the Board to a particular water area. Gladstone is taken to be
a category 1 water authority.
Clause 1085 provides that a person who was a member of a board before
commencement of the Act continues as a director of the authority for the
remainder of the person's term of appointment.
Clause 1086 provides for Gladstone Area Water Board directors to
continue as a director of the Gladstone Area Water Board for the remainder
of the person's term of appointment.
Clause 1087 provides that a person who was an employee of a water
board immediately before commencement of this clause becomes an
employee of the water authority on commencement of this clause. The
person must be employed on existing or equivalent terms and conditions of
employment and remains entitled to all existing and accruing rights of
employment. The employee is entitled to contribute to the same
superannuation scheme. Likewise, the water authority must continue to pay
to that scheme contributions to that scheme on behalf of the employee.
Clause 1088 provides that a water authority is taken to hold a
development permit for works that were authorised under the Acts. For a
water area where there is no water authority, the chief executive is taken to
hold a development permit for the works.
Clause 1089 provides that if a water authority (or the chief executive as
administrator of a water area) was authorised under the Acts to take or
interfere with water, the authorisation continues until it is replaced with a
water entitlement.
Clause 1090 provides that despite the repeal of the GAWB Act,
sections 53, 54, 117 and 118 continue to apply to any contract between the
Gladstone Area Water Board and another entity for the supply of water that
is in force immediately before the commencement of the clause. The
contract is taken to have been made under this Bill.
Clause 1091 clarifies that a reference (in an Act or other document) to a
former water area may be taken to be a reference to an authority area. In
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Water
addition, a reference to a former water board is intended to be taken to be a
reference to a water authority with the same.
Clause 1092 provides for the continuation of the Water Resources
(Areas and Boards) Regulation 2000. Under the repealed Act, a person
could be appointed, nominated or elected to a water board. Under the Bill, a
person can be elected or nominated to a board. The Governor-in Council
then appoints all elected and nominated members to the board of directors.
In the Water Resources (Area and Boards) Regulation 2000, in respect of
the composition of the board of directors of some water authorities, the
Governor in Council directly appoints a director to the board. In this case,
the regulation is to be read as if the requirement were for the person to be
nominated by the chief executive.
Clause 1093 provides for the continuation of by-laws (in force under the
Gladstone Area Water Board Act 1984 and the repealed Act) that were in
existence immediately before the commencement of this clause. It is
intended that such continuation should only be for a period of 2 years after
commencement.
Clauses 1094--1106 not used. See footnote at end of chapter 1.
PART 4--TRANSITIONAL PROVISIONS ABOUT
STATE WATER PROJECTS AND ITS CUSTOMERS
Division 1--State Water Projects before corporatisation
Clause 1107A all powers a person had a delegation to exercise under the
Act as at 30 June 2000, including officers of State Water Projects,
(including powers delegated prior to the abolition of the Primary Industries
Corporation) are validated and the persons exercise of those powers are
validated from 30 June 2000 to 18 August 2000.
Clause 1107 provides that despite the Bill binding the State, chapter 3,
part 6, division 1 about referable dams does not apply to State Water
Projects until it is corporatised under the Government Owned Corporations
Act 1993. State Water Projects is currently a commercialised business unit
in the Department, but has been nominated as a candidate Government
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Water
Owned Corporation. Until corporatisation, it is not intended that State
Water Projects, as part of the State, is to be bound by the provisions about
failure impact assessment for dams under its control.
Division 2--State Water Projects after corporatisation
Subdivision 1--Preliminary
Clause 1108 defines "authority" within this division as meaning:
· a licence under part 4 or 9 of the repealed Act;
· an order in council under which water is supplied;
· an agreement for the supply of water under s.15 of the repealed
Act; or
· another agreement for the supply of water under the repealed Act.
"Customer" is defined within the division as meaning a person who is
supplied water by the corporatised under one of the authorities outlined
above.
Clause 1109 provides when the division applies to the entity. If State
Water Projects is corporatised before commencement, the division applies
on the commencement day. If State Water Projects is corporatised after
commencement, it applies on the day it is corporatised.
Subdivision 2--Granting interim resource operations licences and
interim water allocations
Clause 1110(1) provides that within 30 days after the division
commences, the chief executive must give the corporatised entity an interim
resource operations licence for each piece of water infrastructure it operates.
Because not all of the State Water Projects current assets may be transferred
to the corporatised entity, the clause provides that it relates to those pieces of
infrastructure that the entity operated both before the commencement and
after. It is also provided that in addition to the irrigation areas and projects,
an interim resource operations licence must be granted for Julius Dam.
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Water
Subclause (2) provides that each interim resource operations licence
must state:
(a) all the matters stated in chapter 2, part 5, division 2, subdivision 3
about the content of an interim resource operations licence;
(b) all interim water allocations to be granted to the corporatised entity
for; water losses, unallocated water and water that the entity will
then supply to customers who will not hold an interim water
allocation;
(c) details of existing customers of the corporatised entity who will be
granted interim water allocations other than those customers who
hold existing licences (the existing licensees being dealt with
through clause 1113); and
(d) details of existing customers of the corporatised entity who are
not to be granted or taken to hold interim water allocations;
(e) Details of other existing water supply responsibilities. This is
intended to cover requirements such as those that exist in the
Burdekin River and the Pioneer River for the supply of water to
the Pioneer Valley Water Board and the North and South
Burdekin Water Boards.
Subclause (3) provides that within 30 days of giving the interim resource
operations licence, the chief executive must give the customers detailed in
subclauses 2(c) and (d) an information notice.
The clause also provides that the granting of the licences is made subject
to the provisions in chapter 2, part 5. It is specifically provided that
although a customer is not granted an interim water allocation, the customer
is entitled to the continued supply of water under the authority.
Clause 1111 provides what water will be granted to the corporatised
entity.
Subclause (1)(a) provides that the chief executive must grant to the
corporatised entity interim water allocations in accordance with each interim
resource operations licence given under clause 1110(1). This will be water
for losses, unallocated water and water for delivery to customers who will
not hold interim water allocations.
Currently, State Water Projects controls and uses volumes of water to
operate infrastructure in addition to that water that it delivers. For example,
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Water
there are losses of water through distribution systems, and in some storages
there may be spare water available for future allocation.
Subclause (1)(b) provides that if the corporatised entity was taking water
(other than that referred to in the previous paragraph) the entity may be
granted a licence for the activity. This is intended to cover the situations
where, in some schemes, State Water Projects currently takes high flow
water (known as water harvesting) for sale to customers. It is proposed that
licences would be issued to the entity for those activities. The licence
granted under this section is taken to be a licence granted under part 4 of the
repealed Act.
Clause 1112 provides that the chief executive must grant each customer,
mentioned in clause 1110(2)(c) an interim water allocation in accordance
with the interim resource operations licence. Subclause 2 provides that
before granting the interim water allocation the chief executive must
consider for the granting of that allocation, the following matters:
· whether the authority stated that the customer was granted
nominal allocation of the water;
· whether the authority was in existence when the relevant irrigation
area or project was established;
· whether the supply of water under the authority had an end date;
· whether the customer has over the term of the authority paid the
full commercial value for the supply of water under the authority;
and
· whether the customer has paid the full commercial value for all or
part of the supply of the water and it is reasonable that a
proportion of the authority should be granted as an interim water
allocation.
Subclause (4) provides that an interim water allocation attaches to the
land of the grantee unless the grantee is a local government, water authority
or entity prescribed by regulation. Interim water allocations take effect from
the day the grantee is given the allocation.
Subclauses (6) and (7) provide that if a person was supplied water under
an authority and an amount of money was owed to the State under a
financial arrangement under the authority for the nominal allocation (for
example, instalment contracts); and the person is granted an interim water
allocation, then on the grant of the allocation, the amount owed by the
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Water
person is a debt due to the corporatised entity and the payment of the
amount is a condition of the interim water allocation.
Clause 1113 provides for the "unbundling" of existing licences in
irrigation areas or projects operated by the corporatised entity. The clause
provides that if there is a water user in an irrigation area or project currently
supplied by State Water Projects, then on commencement, that part of the
licence dealing with the water becomes an interim water allocation of the
volume of water on the licence known as the nominal allocation.
The purpose of this clause is to allow for the "unbundling" of existing
licences, and accordingly the characteristics of interim water allocation are
similar to those for water allocations set out in clause 126. That is (as
provided for in subclause 2) the interim water allocation is those parts of the
former authority that relate to matters such as volume and location.
Subclause (3) provides that the interim water allocation attaches to land to
which the authority attached unless the holder was a local government, a
water authority or an entity prescribed by regulation.
Subclauses (4) and (5) provide that if an amount of money was owed to
the State because of some financial arrangement under the authority (such as
instalment contracts), then the money owned becomes a debt due to the
corporatised entity, and repayment becomes a condition of the interim water
allocation.
Clause 1114 provides for a review of the grant of an interim water
allocation. The customer may apply for review about the grant an interim
water allocation based on one or more of the following grounds:
· whether the authority stated that the customer was granted
nominal allocation of the water;
· whether the authority was in existence when the relevant irrigation
area or project was established;
· whether the supply of water under the authority had an end date
and the customer has over the term of the authority paid the full
commercial value for the supply of water under the authority;
· whether the customer has paid the full commercial value for all or
part of the supply of the water and it is reasonable that a
proportion of the authority should be granted as an interim water
allocation.
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Subdivision 3--Supply contracts
Clause 1115 provides that standard supply contracts must be approved
by the Minister for the storage and delivery of water for interim water
allocations other than those mentioned in clause 1116. The contracts must
be notified in the Gazette and continue in force until renegotiated by the
customer and the entity. To the extent that there is an inconsistency between
the contract and the interim water allocation granted under clause 1113(2),
(except where the terms of the interim water allocation relate to resource
management issues) the contract prevails.
Subclause (7) contemplates that these supply contracts will be reviewed
by customer councils that the corporatised entity will be required to establish
as part of its Statement of Corporate Intent.
Clause 1116 relates to supply of water for all interim water allocations
other than those dealt with in clause 1113(2). If:
· there was a written agreement for the supply of water managed
under an interim resource operations licence; and
· the agreement was effective immediately before the granting of
the interim resource operations licence,
then the provisions of the agreement, other than those provisions that deal
with the allocation of water continue to have effect.
Clause 1117 provides that the money due under the Water Resources
(Rates and Charges) Regulation 1992 is money due to the corporatised
entity applies both in respect of that owed for interim water allocations, but
also in respect of any drainage rates that may be payable. The charges under
the regulation are the charges of the corporatised entity until the entity sets
new charges. Where charges are not being dealt with as part of the
development of price paths for the irrigation areas and projects, for example,
drainage charges, these will continue under the regulation as payable to the
entity.
Clause 1118 provides that until chapter 2, part 6 of the Bill commences,
interim water allocations will continue to be dealt with under the provisions
of parts 4 and 9 of the repealed Act.
Clause 1119 provides a reserve power for the Minister and Treasurer to
give the corporatised entity a written joint direction on a matter if they are
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satisfied that it is necessary to give effect to the Bill, or facilitate reform of
the water industry, or ensure a financially viable industry. Any such
direction must be published in the gazette within 21 days. The power
sunsets after 3 years.
Clause 1119A provides that from the day that the division commences
until the interim resource operations licences are granted under clause 1110,
the corporatised entity must exercise the powers of an interim resource
operations licence holder even though the corporatised entity does not have
an interim resource operations licence. This provision, when read with
clause 1110 allows a period of thirty days from the time of commencement
for the chief executive to consider the matters necessary before granting
interim resource operations licences. However during that period, the
corporatised entity has jurisdiction to operate its schemes, and is obliged to
supply its customers.
Clauses 1120--1128 not used. See footnote 2 at end of chapter 1.
PART 5--GENERAL
Clause 1129 provides for how references to Acts or documents that that
references in Acts or documents to:
· the Gladstone Area Water Board Act 1984 may be taken in
reference to this Act if context permits;
· the repealed Act or Acts that dealt with water prior to that Act (eg
the Water Act 1926) can be taken to a reference to this Bill if the
context permits;
· a water entitlement under the repealed Acts can be taken to be an
entitlement under the Bill is the context permits;
· a water entitlement holder under the repealed Acts can be taken to
be the holder of an entitlement under the Bill is the context
permits;
· the repealed Act, or the Land Act 1897, the Land Act 1902 or the
Land Act 1910 may be taken to be a reference to this Act, if
context permits; and
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· a section of the repealed Act, or the Land Act 1987, the Land Act
1902 or the Land Act 1910 may be taken to be a reference to the
corresponding section in this Act.
Clause 1130 gives a transitional regulation making power to make
provision about a matter for which it is necessary to provide for the
transition from the repealed Act to the Bill and the Bill does not make
provision for sufficient provisions.
Clause 1130A sets out the regulations and orders in council that are to be
saved until 1 July 2002 despite progressive repeal of provisions of the Act.
Clauses 1131--1136 not used. See footnote 2 at end of chapter 1.
PART 6--REPEALS
Clause 1137 provides for the repeal of the Gladstone Area Water Board
Act 1984 and the Water Resources Act 1989.
Clauses 1138--1143 not used. See footnote at end of chapter 1.
CHAPTER 10--CONSEQUENTIAL
AMENDMENTS
Clause 1144 states that schedule 2 amends the Acts it mentions. These
are amendments to the Integrated Planning Act 1997, Local Government
Act 1993 and Vegetation Management Act 1999 and relate specifically to
matters about planning matters.
Clause 1145 states that schedule 3 amends other Acts. These are all
other Acts that include reference to the repealed Act, or otherwise deal with
water.
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SCHEDULE 1--PROHIBITED SUBSTANCES
Schedule 1 defines prohibited substances.
SCHEDULE 2--AMENDMENTS ABOUT PLANNING
MATTERS
Integrated Planning Act 1997
Clause 1 amends section 1.3.5 by inserting a new paragraph (g) in the
definition of "operational" work to bring operations of any kind and all
things constructed or installed for taking, or interfering with, water under the
Bill within the definition of "development" under the Integrated Planning
Act 1997. As a consequence works associated with the taking and
interfering with water, within the scope of the meaning of water under the
Bill is brought within the concept of development to allow the development
to be regulated under the Integrated Planning Act 1997and IDAS in
accordance with schedule 8. Amendments to schedule 83 make works
associated with taking, or interfering with, water assessable development
and self-assessable development.
Clause 2 amends section 3.2.1 by inserting subclause (5)(a) to provide if
the development relates to taking or interfering with a resource of the State,
for example water or quarry materials, another Act may require the
application to be supported by evidence of an allocation of, or entitlement to,
that resource.
Clause 3 amends section 3.2.1 (6) by inserting 5(a). This provides for
the evidence of an allocation of, or entitlement to, that resource being a
requisite part of a properly made application.
Clause 4 amends section 3.2.1 by inserting a new subclause (9) which
provides the assessment manager can not accept an application as a properly
made application if that application should require the written consent of the
owner of land to which the application applies and also contain evidence of
3 See clause 14 and 15
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an allocation of, or entitlement to, a resource of the State.
Clause 5 amends section 3.3.15 (1) to clarify that a concurrence agency
must assess an application against concurrence agency codes, in addition to
the laws and policies it applies.
Clause 6 amends section 3.3.15(2)(a) by removing the word "relevant".
That word becomes redundant by the amendment of the section by clause 7
that, apart from adding a reference to codes, qualifies the applicable planning
schemes, policies or codes by referring to those in the previous subclause.
Clause 7 amends section 3.3.15(2)(a) as stated above.
Clause 8 amends s 3.3.18(4)(a) and (b) for consistency with amended
section 3.3.15 by adding a reference to concurrence agency codes. The
amendment clarifies that a concurrence agency may direct the assessment
manager to refuse an application if development the subject of an application
does not comply with its laws and policies, or any code against which the
particular concurrence agency is required to assess the proposed
development.
Clause 9 and clause 10 below amend section 3.5.4 to remove doubt
about the relationship between the subclauses (2) and (3). It has been
suggested that the clauses read together imply that concurrence agency
codes are not part of the laws and policies referred to in subclause (3) and
are therefore not applicable codes for the purposes of subclause (2)(b).
The intent of the clause is that when the assessment manager for an
application is not a local government, the alternative assessment manager
must assess the application against the:
(a) Laws and policies applied by the alternative assessment manager
(that are taken to be applicable codes); and
(b) Particular codes (also applicable codes) the entity would apply to
the development if they were a concurrence agency for the
application, for example, the concurrence agency codes.
Clause 10 amends section 3.5.4(3) as stated above.
Clause 11 amends section 4.1.33 by inserting a new paragraph (c) to
provide a further exception to the general rule that when a notice of appeal
about an enforcement notice is lodged, the operation of the enforcement
notice is stayed until the Court decides otherwise, or the appeal is dismissed
or withdrawn. The removal of quarry material cannot be undone and it is
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important that unauthorised removal can be stopped quickly and not
recommenced until the alleged offence is properly dealt with. The
amendment provides for an enforcement notice relating to removal of
quarry material cannot be stayed by the lodgement of a notice of appeal
against the enforcement notice. Although the person may appeal against the
enforcement notice, it remains in force until the appeal is heard.
Clause 12 amends section 4.3.8 by inserting a new paragraph (e) to
provide a further exception to the general rule that an assessing authority
must give a show cause notice to a person before they can give the person
an enforcement notice. The amendment provides that no show cause notice
is required when an assessing authority proposes to give an enforcement
notice about removal of quarry. A show cause notice would delay the effect
of an enforcement notice and may result in continued or increased removal
of quarry that cannot be remedied.
Clause 13 inserts new section 5.8.5 to allow the Minister the discretion to
delegate any power or function, including the forming of an opinion, the
Minister has under the IPA to an appropriately qualified officer of the Public
Service. For example, if the Minister delegates his functions and powers
under s 4.1.46 to the chief executive, the chief executive is the one who, as
the Minister's delegate, may form the opinion that the appeal involves a
State interest, and may elect to join in the appeal.
Clause 14 amends schedule 8, part 1 by inserting new items 3B and 3C
as assessable development. Item 3B makes the carrying out of operational
work that is operations of any kind and all things constructed or installed for
taking, or interfering with, water under the Bill assessable development
where the operations are for:
(a) Paragraph (a) provides for those operations for taking, or
interfering with, water from a watercourse, lake or spring (other
than under the Bill, clause 20(2), (3) or (5));
(b) Paragraph (b) provides for those operations for those operations
for taking, or interfering with, artesian water;
(c) Paragraph (c) provides for those operations for taking, or
interfering with, overland flow water mentioned in a water
resource plan or subartesian water mentioned in a water resource
plan or prescribed under a regulation.
Item 3C makes assessable the carrying out of operational work that is the
construction and operation of a referable dam under the Bill.
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Clause 15 amends schedule 8, part 1, item 6 for the purpose of inserting
a footnote to that item. The purpose of the footnote is to note that item 6
may trigger the removal of quarry materials as assessable development
under the Environmental Protection Regulation 1998, section 63A for
which the chief executive may be an assessment manager or referral agency.
Clause 16 amends schedule 8, part 2 by inserting a new item 9A as
self-assessable development. Item 9A makes the carrying out of
operational work that is operations of any kind and all things constructed or
installed for taking water under the Bill self assessable development where
the operations are for:
(a) taking water from a watercourse, lake or spring, under
section 20(3); or
(b) taking or interfering with subartesian water mentioned in a water
resource plan or prescribed under a regulation, or overland flow
water mentioned in a water resource plan.
Clause 17 amends schedule 8, part 3 by amending item 13(a) by
providing that 2 exemptions are aspects of management for an agricultural
use on freehold land are not exempt development:
(a) The clearing of native vegetation on freehold land: or
(b) Operations of any kind and all things constructed or installed for
taking, or interfering with, water under the Bill.
Paragraph (a) has been referred to as part of the formatting of this item.
This paragraph had been previously inserted under the Vegetation
Management Act 1999.
Clause 18 inserts a new item 21B in part 3 of schedule 8, to provide that
operational work for installing subscriber connections to premises to a line
that forms part of an existing telecommunications network is exempt
development under planning schemes. The Commonwealth
Telecommunications Act 1997 provided an exemption from regulation for
this type of connection. This exemption will expire on 30 June 2000. This
provision will ensure these connections remain exempt from regulation, and
are not unintentionally regulated by any provisions existing in planning
schemes that would automatically apply when the exemption under the
Commonwealth legislation expires.
Clause 19 inserts a definition of "subscriber connection" in part 4 of
schedule 8 for the purposes of new item 21B inserted in part 3.
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Local Government Act 1993
Clause 1 amends the definition of "local government Act" by inserting a
reference to the Water Act 2000, chapter 3. The intention of this amendment
is to allow a local government to exercise its powers under the Local
Government Act 1993 when it is a service provider within the meaning of
the Bill.
Clause 2 insets a new subsection (5) in section 854 of the Local
Government Act 1993 to provide that a local law is void to the extent it
regulates subscriber connections to premises from a line that forms part of
an existing telecommunications network. The Commonwealth
Telecommunications Act 1997 provided an exemption from regulation for
this type of connection. This exemption will expire on 30 June 2000. This
provision will ensure these connections remain exempt from regulation, and
are not unintentionally regulated by provisions existing in local laws which
would automatically apply when the exemption under the Commonwealth
legislation applies. A definition of "subscriber connection" is inserted for
the purposes of subsection (5).
Clause 3 amends section 942(1) to delete the reference to the Water
Resources Act 1989 and replace it with a reference to the Water Act 2000.
Vegetation Management Act 1999
Clause 1 deletes sections 78, 79 and 80 from the Vegetation Management
Act 1999. Under the Vegetation Management Act 1999, these provisions
have not yet been proclaimed into force. It is necessary for these sections to
come into force at the time of the commencement of certain parts of the Bill
dealing with the Integrated Planning Act 1997. As an alternative to
proclaiming into force these sections under the Vegetation Management Act
1999, the sections have been omitted from that Act and inserted into the
Bill.
Clause 2 amends section 84(2) as stated above.
Clause 3 amends section 85 by omitting the definition for `concurrence
agency code' as this definition has previously been inserted by the
Integrated Planning Act and Other Amendment Act 1999.
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SCHEDULE 3--OTHER AMENDMENTS
Aboriginal Land Act 1991
Clause 1 amends the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
Century Zinc Project Act 1997
Clause 1 amends the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
Fisheries Act 1994
Clause 1 amends the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
Forestry Act 1959
Clause 1 amends the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
Fossicking Act 1994
Clause 1 amends the Act by deleting the reference to "quarry materials
permit" and replacing it with a reference to an allocation of quarry material.
Clause 1A changes the definition of a "referable dam" in the Water
Resources Act 1989. Unless the current provisions of the Water Resources
Act 1989 are amended to provide an interim solution, owners of dams that
do not meet the new threshold size and capacity dimensions as detailed in
this clause, will be put to expense of having a dam licensed when the dam
may no longer be a referable dam when the Bill commences.
Therefore, in the interim period until the commencement of the Bill, only
those dams that meet the size and capacity dimensions as detailed in this
clause, will fall within the definition of a "referable dam" under the Water
Resources Act 1989. In addition, in this interim period, a referable dam will
not include a weir other than a weir that has a variable flow control structure
on the crest of the weir. The meaning of "full supply level" is specifically
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defined to mean the level of the water surface when the water storage is at
maximum operating level when not affected by flood.
Clause 2 and 3 amend the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
Freedom of Information Act 1992
Clause 1 amends Schedule 2 of the Act to provide for an exemption
from the application of the Act in relation to certain activities of State Water
Projects in the event it is corporatised. State Water Projects is the
commercialised business unit in the department and was nominated as a
candidate government owned corporation on 25 May 2000.
Petroleum Act 1923
The Petroleum Act 1923 provides extensive rights to lessees and
permittees under that Act to take and interfere with water. The amendments
to the Petroleum Act 1923 amend those rights such that the lessees and
permittees retain the right under that Act to deal with underground water as
a part of petroleum and gas operations, but to remove the rights under that
Act to take and interfere with water in watercourses lakes and springs.
Petroleum and gas explorers and producers, like any other entity, will
nevertheless be able to apply for an authorisation to take or interfere with
underground water under the Water Act 2000.
Licensee and permittees also will be required to provide annually to the
Minister administering the Petroleum Act 1923, information on the volume
of underground water taken under the authorisation of the Petroleum Act
1923 mentioned above.
Clause 1 deletes section 35(1)(a) of the Petroleum Act 1923, under which
a permittee has the right to take and divert water from any natural spring,
lake, pool or watercourse situated on the land which is covered by the
permit and to use the water for any purpose necessary or incidental to the
holder's prospecting and mining operation.
Clause 2 deletes section 51(1)(b) of the Petroleum Act 1923, under
which a lessee has the right to take and divert water from any natural spring,
lake, pool or watercourse situated on the land the subject of the lease and to
use the water for any purpose necessary or incidental to the mining lessee's
mining operations and to the occupation of the land.
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Clause 3 deletes the reference to the Water Resources Act 1989 and
replacing it with a reference to the Water Act 2000.
Clause 4 deletes section 86(d) of the Petroleum Act 1923, under which
the Minister administering the Petroleum Act 1923 can direct a landholder to
supply underground water to a lessee or permittee.
Clause 5 deletes a reference to a licence under the Water Resources Act
1989 and replaces it with a reference to a water licence under the Water Act
2000.
Clause 5A provides for how an application and a licence for a referable
dam, being a water supply dam, will be transitioned as a result of the change
to the threshold size and capacity dimensions referred to in clause 1A. The
safety conditions of a currently licenced referable dam, that is below the
threshold size and capacity dimensions, will no longer apply to the licence.
If, before the commencement of this section, an application is made under
clause 43 for a licence in relation to a referable dam and the dam is below
the threshold size and capacity dimensions, the application will lapse and
will not need to be processed.
Licences and applications in relation to hazardous waste dams will not be
affected.
Clause 6 deletes section 94 of the Petroleum Act 1923, under which the
drilling of a bore by a landholder for the purposes of taking underground
water, on any land that is the subject of a permit or lease, must be approved
by the Minister administering the Petroleum Act 1923.
Clause 7 establishes a duty for permittees or lessees to report to the
Minister administering the Petroleum Act 1923, the volume of underground
water taken each year. This will be the amount of water taken both for the
purposes of producing petroleum or gas products as well as the water that is
produced from a petroleum or gas well along with the petroleum or gas
(sometimes referred to as the "water cut"). The will not necessarily involve
accurate measurement of water volumes by use of a water meter. The
volumes will only need to be measured or estimated to the accuracy
necessary to enable an understanding to be reached as to the impacts of the
water extraction on water levels or water pressures in the aquifer in the
region.
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Queensland Competition Authority Act 1997
It is proposed under the Bill to amend the Queensland Competition
Authority Act 1997 to provide the Queensland Competition Authority with
an arbitration function for certain regulatory matters under Chapter 3. The
arbitration function applies to certain matters for which an information
notice has been given by the regulator, including:
· Where the regulator refuses to approve a strategic asset
management plan, because it is deficient in a material particular.
· Where the regulator requires a service provider to take action
following a spot audit under clause 419.
· Where there is any action taken by the regulator following inquiry
into a complaint by a customer under clause 426.
· Where the regulator grants or refuses to grant an exemption from
divisions 1, 2 or3 of Chapter 3, Part 3 to a small service provider.
Clause 1 amends section 10 by adding paragraph (gb) a further function
to conduct arbitration hearings about decisions made by the regulator in
respect of a service provider's obligations for strategic asset management
plans.
Clause 2 amends section 188 by adding subclause (c) to provide for part
7 to apply to an arbitration for an application under the Water Act 2000.
Clause 3 amends the definition of `party' in the dictionary by adding a
reference to another party as a party to an arbitration for an application under
the Water Resources Act 1989.
Clause 4 amends the definition of "public facility" in the dictionary by
deleting a reference to water board and replacing it with water authority.
Clause 5 amends the definition of "water board" in the dictionary by
deleting the reference to water board and replacing it with water authority
within the meaning of the Water Act 2000.
Recreation Areas Management Act 1988
Clause 1 amends the Act by deleting the reference to the Water
Resources Act 1989 and replacing it with the Water Act 2000.
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Sewerage and Water Supply Act 1949
Clause 1,2 and 3 amend section 17 by omitting the definition of
`sewerage' and other references to `sewerage' within the clause.
South East Queensland Water Board (Reforms Facilitation) Act 1999
Clause 1 amends section 1 to delete the reference to "to amend the Water
Resources Act 1989"
State Development and Public Works Organisation Act 1971
The clauses to be inserted in section 89 of the Act clarify the relationship
between the operation of the this Act and the Bill. The powers of the
Coordinator-General are to take water for authorised works under that Act.
The amendments provide that:
· If a moratorium notice has been published under the Bill, the
power of the coordinator-general does not apply to water to which
the notice applied or water to which any amended notice applies.
· If, at the time the power of the Coordinator-General is to be
exercised, a water resource plan has been approved, the power of
the coordinator-general does not apply to water to be supplied to
water entitlement holders or persons with authorisations under
clause 20 of the Bill or water required to meet environmental flow
objectives or water allocation security objectives.
Where the Coordinator-General does act under subsection (1) there must
be consideration of the social and economic benefits of the proposed works
and any 1 or more of the matters listed in the clause. To ensure that any
exercise of the power is transparent, a statement of reasons must be
published in the gazette and also tabled in the Assembly.
Torres Strait Islander Land Act 1991
Clause 1 amends the Act by replacing the reference to Water Resources
Act 1989 with Water Act 2000 in the meaning of "bed and banks", "lake"
and "watercourse" in the definition of "water".
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Townsville/Thuringowa Water Supply Board Act 1987
Clause 1 amends the Act by replacing the reference to Water Resources
Act 1989 with Water Act 2000 in section 33.
Water Resources Act 1989
Clause 1 amends section 93 by stating that a notice issued by the chief
executive under subsection (1) attaches to the land and binds the owner and
the owner's successors in title. If the chief executive gives an owner of a
referable dam a notice, the chief executive must also give a copy of the
notice to the Registrar of Titles and the Registrar of Titles must maintain the
title records in a way that a search of the register relating to the land will
show that a notice has been issued and that particulars of the notice may be
obtained from the chief executive.
Clause 2 amends section 224J to include in the meaning of compliance
section, a reference to section 93. This allows a notice issued by the chief
executive under section 93 to be enforced under the enforcement injunction
provisions of part 11, division 1(b) of the repealed Act.
Clause 3 repeals a number of sections, with the intention that these
sections will be repealed to coincide with the commencement of certain
provisions in the Water Act 2000. The balance of the Act would then be
repealed upon the commencement of chapter 9, part 6.
Clauses 4 and 5 amend the Act by deleting sections 215K, 215L
and 234. The omission of sections 215K & L will coincide with the grant
of any interim resource operations licence or resource operations licence to
the South East Queensland Water Corporation.
Whistleblowers Protection Act 1994
Clause 1 amends the Act by replacing the reference to the Water
Resources Act 1989 with Water Act 2000 together with a reference to
specific sections.
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SCHEDULE 4--DICTIONARY
Clause 3 provides that the dictionary appears in this schedule. Many are
self-explanatory, however below is a note of a definition that requires
further explanation.
"dam" means works that includes a barrier whether permanent or
temporary that does, could or would impound water and the storage
area created by those works. In addition a dam includes an
embankment or other structure that controls the flow of water and is
incidental to another dam. For example, if in relation to a referable
dam, an embankment is required to be constructed to contain or control
the level of inundation, that embankment is taken to be a dam within
the meaning of the Bill. It is noted that the term does not include a
rainwater tank.
Clause 3 provides that the dictionary appears in this schedule. Many are
self-explanatory, however below is a note of a definition that requires
further explanation.
"executive officer", of a corporation, means a person who is concerned
with, or takes part in, the corporation's management (whether it is
internal or external management), whether or not the person is a
director or the person's position is given the name of executive officer.
© State of Queensland 2000